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SPEECH 

^kx. NICHOLSON, 



On the bill received from the Senate, entitled " An Act to repeal certain acts 
respecting the organisation of the courts of the United States, 



Delivered in the House of Representatives on February 26 — 27, 1802, 






Mr. Nicholson. — I lament, Mr. 
Chairman, that I am under the neceffity 
of riling at this late hour, as I am fear- 
ful the patience of the committee is 
well nigh exhaufted. I am fenflble that 
the uncommon length of the difcuflion 
has left me but a very narrow ground 
to tread on ; but as the queflion has be- 
come highly important, from the confti- 
Itutional objections which have been 
Started, I will venture to folicit your 
indulgence while I offer fome remarks 
that appear, to my mind, applicable to 
the fubject now under coniideration. 

The very uncommon direction, which 
has been given to the debate, will, I 
tnift, be a iumxient apology for my no- 
ticing a variety of obfervations made by 
gentlemen on the other fide of the houfe, 
which have no connection with the bill 
on the table. I fhould have felt a lin- 
gular pleafure in following the honora- 
ble member from Connecticut (Mr. 
Grifwold) but for his concluding remarks 
— in the anterior part of his fpeech that 
gentleman kept his eye Readily fixed ei- 
ther upon the expediency or conftituti- 
onality of the queftion, and did not in- 
dulge himfelf in thofe wanderings of the 
imagination, which fo eminently diftin- 
guifhed his friends who have preceded 
him ; but the clofe was marked with a 
[hameful virulence, calculated to excite 
Indignation and not to convince the un- 
krftanding. 

Sir, when I am told that the party 
idvocating this repeal have grown out 



of the party originally oppofed to the 
conftitution, and are now about to pro- 
ftrate it, I feel more than I am willing 
to exprefs ; but when gentlemen talk 
about parties in this country, permii me 
to turn their attention to an earlier pe- 
riod of our political hiftory ; to that pe- 
riod when our liberties and independence 
were at ftake, and when every nerve was 
fining to refill the encroachments of 
tyranny. At this time where were ma- 
ny of that gentleman's political friends ? 
Upon examination it will be found that 
many of them bafely deferted their coun- 
try in her diftrefs, and were openly 
fighting in the ranks of her enemies. In 
the lift of my political friends, none fuch. 
are to be found, f®r we do not require 
their fupport. But I can look about me 
upon my right hand, and upon my left, 
and can fee men even upon this floor, 
advocating the piefent bill, who bore 
the burthen of the revolutionary war, 
who drew their fwords to eftablifh the 
independence we now enjoy, and who 
will not hefitate to draw them again, if 
thofe threats are carried into execution, 
which have been recently thrown out 
againfl < the conftitution. I know men 
too, equally diftinguifhed for their ta- 
lents and their virtues, friendly to this 
repeal, who figned the conftitution as 
members of the general convention, 
who ufed every effort to promote its a- 
doption, and who I have no doubt are 
ready to defend it, to the lad moment. 
There are men likewife, and gentlemen 



[ * 

dare not contradict me, 'who re fa fed 
their fignatures to the confKtution as 
ibers of the general convention, and 
who oppofed it in every ftage of its a- 
doption, but were afterwards received 
into favor, and were high in the confi- 
dence of the former adminiftration. 
Whiub of thefe two defcriptions of per- 
fons are mod likely to cherifli the con- 
IHtution, I cheerfully leave to the Ame- 
rican people to decide. It is extremely 
poflible that feme of my political 
friends were oppofed to ics adoption, 
without certain amendments at that 
time urged with great force, becaufe they 
thought the liberties of the nation not 
fufHciently fecured ; and I wifh I could 
lay that no events have fmce taken 
place to juftify the uneafinefs which at 
*h:it time exifted. A recurrence to 
forfie of thofe events by my friend from 
Virginia (Mr. Gdes) has been warmly 
commented on, and he has been charged 
with introducing fubjects which have 
formerly excited irritation, for the pur- 
pole of catching the popular ear. I 
tfuft I fhall be pardoned for faying that, 
in my judgment, a recurrence to thofe 
events was in a great meafure rendered 
neceffary, by the unj tiffin" able remarks 
with which the debate was opened by a 
gentleman from North Carolina (Mr. 
HendeiTon). 

Let it be recollected, Sir, that a few 
days pad, when the gentleman from De- 
laware (Mr. Bayard) was begging for a 
poftponement of the bill for a week only, 
he promifed for himfelf and his friends 
that if we would indulge them, they 
would meet us with calmness, and would 
proceed to the difcuflion with a fpirit of 
christian meekness — after the poftpone- 
ment was confented to, and after this 
voluntary promife, I came to the houfe 
with an expectation of hearing the fub- 
ject difcuffed with that coolnefs and de- 
liberation which are truly deferable in 
the iuveftigation of truth ; but I icon 
difcovered that this expectation was 
vain and illufory — that the expected 
calm had roufed itfelf to a whirlwind, 
and the fpirit of clinician meeknefs was 
transformed into a fpirit of anger and 



J 



V fx \\ 6 



ennxmation. The gentleman from North 
Carolina, who opened the debate, for- 
getful of the promife which had been 
made for him by his friend from Dela- 
ware, commenced an unwarrantable at- 
tack upon a majority of the houfe, by 
declaring that on the feventh of Decem- 
ber the fame fpirit of innovation had 
entered thefe walls, which had laid wafte 
the faireft portions of Europe ; that it 
was now about to tear down all the va- 
luable inftitutions which had been ere&- 
ed by former adminiilration-s, and even 
todeftroy the conftitution itfelf. Did 
gentlemen imagine that fuch obfervati- 
ons were to pais unnoticed ? Did they 
fufepofe that we would fit tamely down 
under an imputation at once fo heavy 
and fo groundlefs ? Was it not natural 
that Ave fliould go back and look into the 
nature and origin of thofe meafures 
which had been denominated the faireft 
inftitutions, and which the gentleman 
had particularized, as the debt, the taxes, 
the judiciary and the mint ? Yes, fir, 
the gentleman from Virginia did tak<« a 
view of thefe fair institutions, and did 
{hew, whatever might have been the 
motives of their authors, that their ine- 
vitable tendency was to Itrengthen the 
power ef the executive. It is this un- 
due influence of the executive power of 
the government that we wifh to reduce 
— it is this influence that we wifh to 
confine within its proper limits, in order 
to prevent the government from taking 
that courfe, which moft republican go- 
vernments have heretofore taken ; to 
prevent it from arriving at that goal 
where the fpirit of republicanism is loft, 
and monarchy commences. — Permit me 
to afk the gentleman from Delaware, if 
he was ferious when he faid there were no 
friends to monarchy in this country? 
Does he not recollect a propofition that 
was made in the general convention, 
when our pre lent conftitution was fram- 
ed ? — And does he not recollect by whom 
that propofition was made? — The form 
of government contained in that propo- 
fition bore, indeed, the name of a re- 
public, but was marked with the ftrong- 
eft features of monarchy and aristocracy* 



f 



] 



The chief magirl rate and fenate were to 
hold their feats during good behaviour, 
or as gentlemen now contend, for lite ; 
the chief magiftrate was to have an ab- 
solute negative on all laws, and the fole 
direction of war, after its commence- 
ment ; the fenate to have the exclulive. 
right to declare war ; the governors of 
the refpective dates to be appointed by 
the general government, and to have an 
abfolute negative on the laws of the 
flates. Ah the militia of the ftates was 
to be under the direction of the general 
government, by whom the militia officers 
were to be appointed. The immediate 
representatives of the people were to be 
chefen for three years, but their powers 
were not defined ; it is certain, however, 
that they could pafs no laws, which were 
not under the conToul and fubject to 
the rejection of the fenate and chief ma- 
giftrate, who were placed above all ref- 
ponfibility to the nation. — When I fay, 
" all'refponftbility," I mean not to forget 
that they were liable to impeachment for 
corrupt conduct in office ; yet it may be 
remembered, and the hiftory of other na- 
tions warrants the opinion, that rulers 
mav be guilty of ten thoufandopprelTi. ns, 
without che poffibility of proving that 
their conduct was founded on sorrup- 
tion. Thefe impeachments too were to 
be tried, not by perfons holding their 
appointments from the people, or refpon- 
fible to them, but by the chief judge of 
each ftate, who it was expr'efsly provid- 
ed fhould hold his office during good 
behaviour. — That this proportion was 
made, no gentleman will doubt ; or if 
a doubt refts on the mind of any man, 
I refer him to members of the general 
convention who are now prefent, and 
who agree in political opinion with our 
opponents^ I venture to hazard the af- 
fertion that the information I have riv- 
en will be found to be correct, becrufe. 
J have derived it from the moft an 
tic fource ; from members of the con- 
vention, in whofe hands copies c r ' the 
plan are now to be {ten, which were 
taken by them at the time. It howe- 
ver, my information is ii there 
are gentlemen now in iry view, who 



can furniih the means of fetting me 
right, and I call ujoon my adversaries 
to contradict me upon any authority 
whatever. But, fir, I have no apprc- 
henfion that I (hall be contradicted — 
gentlemen are too well acquainted with 
the fact, to rifque a contrcverfy about 
it ; for it has been publilhed and com- 
mented on in every ftate of the union, 
and never has been denied. Among other 
publications, I have now one in my 
hand, of an official nature — given to the 
world, by a member of the convention 
in his official capacity — and bearing an 
authenticity that is not to be difputed. 
It is, fir, a communication made in the 
month of January in the year 1788 to 
the legislature of Maryland by Luther 
Martin, Efq; one of the delegates from 
that ftate to the general convention, in 
which he affirms his reafons iov Ffcfufin£ 
to (ign thp constitution. After having 
faid that there were three parties in the 
convention with different views and fen- 
timents, he proceeds in the 10th page. 
* One party whofe object and wish it 
was to aboliih and annihilate all ftate 
governments, and to bring forward one 
general government, over this extcn&ve 
continent, of a monarchical nature, un- 
der certain reft: lotions and limitations l 
T h o I e w h o Gpsnly h v o w t d t ! . i s 1 '« n : ; m e ; 1 1 
were, it is true, but few, yet it is equally 
true, that there was a cor.sidcratle num- 
ber, who did not openly avow it, who 
were by myfelf and many others of the 
convention, confiuered as being in 
lity favourers of that fentiment, and \ - 
ing upon thole principles, coji . . 
dc-ivruring to Carry into effect what 
they well knew openly and avy 
could not be rcccmpiiih: . e .' 

After this let v.o v. that there 

are advocates for monarchy in this 
country, and advocates too who have 
been high in the confidence of the na- 
tion ; TOi we have been told that 
were members of the general Conven- 
tion, and were :o give the ri- 
Xence of fnpnai t tution 

■ which we 
it be forgotten, 
another authority, at cne tim^ a.t 



[ 4 ] 



very much refpedted by federal gentle- 
men, that a monarchical government 
with an ariftocratic and democratic 
branch, was not only a republic, but the 
belt kind of republic. 

But, Mr. Chairman, if there are 
friends to monarchy in this country, who 
think that the nature and conftitution 
of man will bear no other form of go- 
vernment, it is not for me to cenfure 
them — I thank God we are free, and 
that there is no more perfecution for 
political than religious opinion — Yet 
■while I refrain from cenfuring, I will 
alio take the liberty of faying that I ne- 
ver will trufl thofe who entertain fuch 
opinions ; but will at all times ufe my 
endeavours, feeble as they may be, to 
correct fuch of their errors as in my 
judgment may have an injurious opera- 
tion either upon the government or the 
nation. 

When we attempt to correct thefe er- 
rors, let us not be told that we are about 
to proftrate the conftitution— The con- 
ftitution is as dear to us as to our ad- 
verfaries, and we will go as far to fup- 
port it— it is by repairing the breaches 
that we mean to fave it, and to fit it on 
a firm and lading foundation that fhall 
re lilt the attacks of its enemies, and 
defy the encroachments of ambition. 
We are yet a young nation, and mull 
learn wifdom from the experience of o- 
thers — By avoiding the courfe which o- 
ther nations have fleered, we fha.ll avoid 
likewife their cataftrophe — Public debts, 
Handing armies, and heavy taxes have 
converted the Englifh nation into a 
mere machine to be uled at the pleafure 
of the crown. After having ftruggled 
nearly fix hundred years for their liber- 
ties, they now find themfelves almo't at 
the fame point from which their ancef- 
tors let out. This is not barely an opi- 
nion of my own formed upon curfory 
obfervation, but is fanctioned by the 
authority of a univerfally admired wri- 
ter, known to molt of us. Sir William 
Blackftone, in the 4th vol. of his valua- 
able commentaries on the laws of Eng- 
land, fpeaking of the various reductions 
that have been made in the prerog.i-; 



tiVe of the crown Hnce the revolution 
of 1688, and the confequent apparent 
advantages derived to the nation, ufes 
a language which I fear is too applica- 
ble to our own fituation : i yet though 
thefe provifions have in appearance and 
nominally, reduced the ib ength of the 
executive power, to a much lower ebb 
than in the preceding period, if on the 
other hand, we throw into the oppoiite 
fcale (what perhaps the immoderate re- 
duction of the ancient prerogative may- 
have rendered in fome degree nectfTary) 
the vaft acquifition of force ariling from 
the riot act and the annual expedience of 
a standing army ; and the vaft acquifition 
ofperibnal attachment, ariling trom the 
magnitude of the national debt, and the 
manner of levying those yearly millions 
that are appropriated to pay the intereft ; 
toe shall find that the crown has gradu- 
ally and imperceptibly gained almost as 
much in influence, as it has apparently 
lost in prerogative.'' p. 440. 

Mr. Chairman, if a man acquainted 
with the hiftory of our government, 
would attend to the remarks juft read, 
he would fuppofe that this was the chart 
by which our political courfe had been 
fteered. It is true we have had no riot 
act, but we have had a sedition act, cal- 
culated to fecure the conduct of the ex- 
ecutive from free and full inveftigation ; 
we have had an army, and itill have a 
fmall one, fecuring to the executive an 
immenfity of patronage ; and we have a 
large national debt for the payment of 
the principal and intereft of which it is 
necefiary to collect i yearly millions', 
by means of a cloud of officers fpread 
over the face of the country. By re- 
pealing a part of the taxes from which 
a part of this money has been railed, we 
not only lefTen the burthens of the peo- 
ple, but we likewife difcharge a large 
portion of thofe officers who are appoint- 
ed by the executive, and who add great- 
Iv to his influence. 

This debt, which now hangs as a dead 

weight about us, has been called the 

price of our independence, and has been 

ipokera of as a debt due to the * war-worn 

oldUrf which we affumed and funded 



[ 5 ] 



to alleviate his Sufferings. This pofition 
I cannot affect to. When the veteran 
folclier returned from the fatigues and 
hardships of the war, to enjoy domeftic 
comfort, he brought with him as an evi- 
dence of the fervice he had rendered, no- 
thing but his certificates and his rounds. 
They were, indeed, honorable teftimoni- 
als ; the latter he felt would remain with 
him while life lafted, and the former he 
held with the hope that one day or 
other, his country would be in a Si- 
tuation to pay him ; but the hard 
hand of poverty prefTed upon him, and 
ftern neceflity compelled him to pari with 
r-.em for a pittance. The rich and cun- 
ning fpeculator, who had iheltered him- 
felf from the dorm, now came out to 
prey upon his diftrefs, and for two shil- 
lings- and six pence in the pound, he pur- 
chaied this poor reward of toil and hard- 
ship. When you were about to make 
provilion for the payment of this debt, 
you were called on, loudly called on by 
the voice of humanity, by the fpirit of 
juftice, to make a difcrimination in favor 
of the tidier. He aiked you to give to 
the fpeculator what the fpeculator had ad- 
vanced ; but to give the balance to the 
poor, though valiant foldier, who had 
faithfully earned it in the frozen regions 
of Canada, or the burning fands of S. Ca- 
rolina ; you regarded him not ; to his tale 
of diftrefs you turned a deaf ear ; his fer- 
vices and his fufferings were forgotten ; 
the cold and hunger he had endured, the 
blood he had fpilt, were no longer re- 
membered ; you cafl him upon the un- 
feeling world, a miferable dependent up- 
on charity for fubfiftence. Let not then 
the gentleman from Delaware call this 
debt the price of our independence, or a 
compenfation to the war-worn foldier. 
To him it was a poor compenfation in- 
deed. Its effect was to intrench your- 
felves around by rich Speculators, whofe 
intereft and influence you fecured, and 
who would be ready to fupport you in 
any meafures, provided you would enfure 
them the payment of the intereft on that 
debt, which was funded for their benefit, 
but which was created at the hazard and 
*xpence of a brave and meritorious fol- 



diery. From motives of a fhameful poli- 
cy you enabled the proud fpeculator to 
roll along in his gilded chariot, while the 
hardy veteran, who had fought and bled 
for your liberties, was left to toil i&r his 
fupport, or to beg his bread from door 
to door. 

But this debt, iniquitous as we deem 
the manner of its fettlement, we mean 
to difcharge ; but we mean not to per- 
petuate it ; it is no part of our political 
creed that " a public debt is a public 
blessing." — We will, I truft, make am- 
ple provifion for its final *-edemption ; and 
when in a few days a proportion lhall be 
fubmitted for the annual appropriation 
of feven millions and three hundred thou- 
fand dollars to this object, I challenge 
gentlemen on the other fide of the houSe, 
who exprefs fo much anxiety about nub- 
lic faith, to be as forward in fupport of 
this meafure as I (hall be. We will then 
fhew to the American nation, who are 
moft inclined to fupport the public cre- 
dit ; whether thofe who are deiirous of 
paying the debt, or thofe who are anxious 
for its perpetuation. 

The member from Delaware told us 
that the gentleman from Virginia (Mr. 
Giles) after exhaulting one quiver, had 
unlocked another and discharged it upon 
the judges ; thofe judges whofe victims 
he has never heard of. If that gentle- 
man has never heard of a judge's ftoop- 
ing from the bench to look for victims, 
I have. Let me direct his attention even 
to his own ftate. Let me alk him if he 
has never heard of a judge command- 
ing the diftrict attorney to fearch a file 
of newfpapers, in order to difcover Some- 
thing upon which a profecution might 
be grounded ? Let me afk him if that 
judge did not detain the grand jury at a 
bufy feafon of the year, for the avowed 
purpofe of finding an indictment, not up- 
on any fact known to the judge, but up- 
on a mere report which the judge had 
heard, that there was a feditious paper 
printed in the ftate. This looks like ftoop- 
ing from the bench to fearch for a vic- 
tim. But tne gentleman from Delaware 
looks to the executive for victims ; for 
thole widows and orphans who demand 



c < 

the commiferation of the people. Mr. 
N. faid he could not conceive how 
■widows and orphans could be >. ft ed\ed by 
the executive, for he did not know that 
•widows and orphans had been diiVnifTcd 
from office, as he never had tfnderftood 
that it was ufual to give them appoint- 
ments. He had heard that iome perfons 
l.ad been dilnr.if d for being public de- 
faulters, and others for revolutionary 
toryilm ; but he had not heard that any 
had been difmiflVd for refusing to sjgn 
en address offering up adulation to Pi e- 
sidential vanity. He had indeed under- 
ftood that two men had been reftored to 
office, who were difmifled under a for- 
mer administration for this crying fin. — 
But why all this uneafinefs about difmif- 
ials from office ? Have the friends of 
•gentlemen heretofore been fo eager in 
their purluit of t-he loaves and fifhes, that 
they are now unwilling to furrender 
them ? Have they enjoyed them with 
fuch peculiar delight, that they now mur- 
mur at the exercife of the conftitutional 
right which the Prelident poffeffes of dis- 
placing from office all thole whom he 
■thinks unfit for the duties, and of putting 
•in thofe who, in his opinion are better 
qualified. Surely when gentlemen are fo 
itrenuoufly contending for the conftitu- 
tional rights of the judiciary, they ought 
not to murmur at the exercife of a con- 
ftitutional right by the executive. — 
•Nor do I think they can with any 
propriety cornpl tin, when it is recol- 
lected, that although the Prcfident had 
the power of difp&fing of all offices, 
yet he has left by far the larger propor- 
tion in the poffeffion of men who are per- 
fonally and politically his enemies. From 
the gh»eatdifconcent expreffed on the Sub- 
ject of rem oval Sj it might feem that the 
judges thetrrfelves were rather the objects 
of general folic itudtf, than the fyitem or 
conftitutional privileges of the judiciary. 
This judiciary, however, the gentle- 
man from Delaware has faid, in that fame 
fpirit of chrMtian metknefs which appears 
to have characterized him throughout, he 
never coniidered a fancluary, beeaufe lie 
knew that nothing \ I in the eyes 

of infidels. May I be permitted to aflc, 



what the honorable gentleman means by 
infidels ? The expreffion excited Iome de* 
gree of furprize, becaufe as the gentle- 
man had on a former occalion talked fo 
much of Christian meekness, I had flat- 
tered myfelf that he felt iome little of 
Christian charity. The hope I fear was 
a vain one. The honorable member and 
his friends are orthodox; we and our con- 
ftituents are heretics. If, fir, an un- 
codified averfion to the high falhioned 
opinion that a public debt is a public 
blcfling ; if a total unbelief in the pro- 
priety of laying heavy and oppreffive 
taxes to pay a ufelefs and expenlive ar- 
my ; if the ftrongeft reprobation of every 
law, calculated to r^ftrain the liberty of 
the prefs and thereby to prevent the na- 
tion from esquiring into its' own con- 
cerns ; if the entire rejection of the odi- 
ous principle that the reics of govern- 
ment are to be placed in the hands of a 
fet of men who are independent of and 
beyond the controul of the people, afford 
any evidence of infidelity, then do I 
avow myfelf as much an infidel as any 
man living'. And if chriftianity and in- 
fidelity be the two principles, diametri- 
cally oppofed to each other, it is moft 
certain that the gentlemen and myfelf 
are as far afunder as if we inhabited dif- 
ferent hemispheres. He is a political 
ehriftian, and I a political infidel. He 
offers up his facrifices upon the altar 
of independent rulers ; 1 bow at the 
ftirine of the fovereign people. This 
wide diftance I truft will ever be preferv- 
ed between us, while the gentleman holds 
his prefent political creed. 

Was there a man who did not feel the 
higheft aironifhment at the hen. mem- 
ber's doctrine in relation t© the common 
law ? Is there any one who believes with 
him that " ftript of the common law, 
we have neither conftitution or govern- 
ment ; that our conftitution would be 
unintelligible, and ourftatutes ufelefs?" 
Sir, the gentleman tells us " we mult 
leave it to the discretion of the judges 
to declare what belongs to us, and what 
i,- ir.i.luitable." He fays we have nothing 
to do with any thing of a monarchical 
tendency ; yet even upon his own ground 



[ 7 ] 



this is a queftion for the difcretion of 
the judges. Have the people of this 
country ever confeated to veil the judges 
with this extenfive difcretionary pow- 
er I Have they ever fan&ioned the prin- 
ciple that the judges fhould make laws 
for them inftead of their Reprefenta- 
tives ? Is it not legiflation to all intents 
and purpofes, when your judges are au- 
thorized to introduce at pieafure the 
laws of a foreign country, to arm them- 
felves with power ? The American peo- 
ple never dreamt of fuch a principle in 
the conftitution, and never will fubmit to 
it. They never ought to fubmit to it. 
It is giving to the judges a power infi- 
nitely more tran fcendant than that veil- 
ed in any other branch of the govern- 
ment. The legislature cannot recognife 
any principle of the common law having 
a monarchical tendency, yet this princi- 
ple the judges may recognize, it' you 
leave it to their difcretion to introduce 
any part of the common law which they 
may think proper. 

I have fo often heard the gentleman 
■ from Delaware maintain upon this floor 
an opinion that the common law of Eng- 
land was the common law of the United 
States in their national capacity, and 
that therefore the federal courts have a 
general common law jurifdi&ion, that I 
tkink proper to offer fome remarks upon 
it ; leaft filence on our part fhould be 
conftrued into acquiefcence. 

Let us then examine this fubjedt, and 
enquire when and how the common law 
was introduced into this csuntry. The 
gentleman from Delaware fuppofes/f was 
brought here by our forefathers at the 
time of their emigration. To this opinion 
I might oppofe that of the celebrated 
judge Blackftone, who in his firft volume 
of his commentaries on the laws of Eng- 
land, declares in the moft pofitive terms, 
that the American plantations were ei- 
ther ceded by treaties^ or conquered 
from the natives ; and that therefore the 
common law of England, as fuch, had 
no force or authority there ; but where- 
ver it is in force, it arifes from their 
having ingrafted it into their own muni- 
cipal regulations. [Mr. N. read lundry 



extracts from the 106th, 107th, 108th, 
and 109th pages cf 1ft vol. of Blackftone, 
to fhew that this was the opinion of the 
learned judge.] For this opinion how- 
ever, fir, of judge Blackftone, I do not 
contend. I have feen it very powerful- 
ly oppofed by able writers, and I think 
the ufage and practice of the colonies 
themfelves furnifh a fuftlcient argument 
againft it. It may perhaps be correct 
in its application to New-York, New- 
Jerfey, Pennfylvania, and Delaware, 
which, I believe, were originally fettled 
by the Dutch and Sweden, and were ced- 
ed to the Eaglifh by the treaty of Breda, 
in the year 1667. Thefe were therefore 
conquered countries, and the common 
law of England could not have been 
brought into them by the original emi- 
grants. It may have been fmce praclif- 
ed under in thefe ftates, but is indebted 
for its introduction either to exprefs fta- 
tute, or to common ufage. It goes 
however to eftablifh the principle for 
which I contend, that our forefathers 
brought with them no law having a uni- 
form operation over all the extent of 
country now contained within the limits 
of the United States ; for when gentle- 
men fpeak of a common law of the Uni- 
ted States, they muft mean a law uni- 
form throughout the whole extent and 
equally obligatory upon the whole na- 
tion. I entertain no doubt rayfelf that 
the common law of England, orfo much 
of it as was applicable to their fituation, 
was brought over by the ©riginal emi- 
grants, to New- England, to Maryland, 
to Virginia, and the other fouthern 
ilates ; and that it continued to be the law 
of the provinces until altered by their 
refpective legiflatures. But it was the 
law of each province only, and not a 
general law operating upon the whole ; 
for each was independent ot the other, 
and the municipal regulations of the one 
could not bind the other. Thus the rule 
of fucceflion to real eftate by primogeni- 
ture continued in moft of the provinces 
till about the commencement of the 
revolution ; but in Maffachufetts as early 
as the year 1648 they declared by law 
that lands fiiould defcend andbc held in 



C 8 3 



eorhmon among the children. In Vir- 
ginia a Jieri facias could not be laid on 
lands, nor can it even at this time ; but 
in Maryland this rule of the common 
law was changed byftatute in the reign 
of George the fecond, and lands were 
made equally liable to debts as perfonal 
property. In MafTachufetts, blafphemy 
and perjury were made capital offences by 
their own flatutes, neither of which 
were capital at common law, and their 
punilhment has been otherwile provided 
for in other Hates, particularly in Ma- 
ryland. The doctrine of forfeitures was 
intirely done away in Maflachufetts by 
their own local laws, and traitors and fe- 
lons were allowed to devife away their 
lands, goods and chatties ; while in moil 
of the other provinces, the forfeiture 
upon conviction and attainder continued 
as at common law. Numberlefs inftan- 
ces might be adduced in addition to thefe 
to mew the total difagreement in the 
various changes made in the common law 
by the feveral provincial legislatures at 
different times, but I apprehend thofe 
mentioned are fufficient to convince a- 
ny candid mind, that there was no gene- 
ral uniform law or rule of conduct ope- 
rating upon the refpective colonies prior to 
their confederation for the purpofes®f ge- 
neral defence. Permit me likewife to re- 
mark that even if the common law had re- 
mained unaltered by the feveral colonial 
governments, yet it could not have been 
confidered as a uniform rule of law o- 
perating upon them as a nation, becaufe 
each was independent of the other and 
had emigrated at different periods, while 
the common law of England was under- 
going the moft material changes by act 
of parliament. The colonization of Vir- 
ginia took place in the reign of Queen 
Elizabeth, that of Maryland in the reign 
of Charles the firft, and that of Georgia 
in the reign of George the fecond. In 
the intervening fpaces of time, the com- 
mon law had been greatly ameliorated, 
and if it is now to be infilled on as con- 
ftituting the law of the United States, 
in confequence of its introduction by 
our forefathers at the time of their emi- 
gration, we (hould be at a lofs to deter- 



mine which of thefe periods we would 
fix on as that which was to p-ive the 
character to the common law ; whether 
it is to be the common law in force in 
the reign of Elizabeth, or the common 
law as ameliorated by llatute, betweea 
that time and the reign of George the 
fecond. I need not enter into a detail 
of thefe changes, for they will readily 
occur to moft gentlemen who hear me ; 
but as very material changes were made, 
I think it < annot be contended that the 
law as exifting at one period or the o- 
ther could have any uniform operation 
upon the feveral colonies, who were, as 
to each other, independent hates go- 
verned by their own laws, and without 
any connexion, common government, or 
general law prior to the declaration of 
independence. 

Thefe obfervations Lave been made 
with a view of fhewing that as BritWh 
colonies, although each might have a- 
dopted the common law of England for 
its own purpefes, yet each having adopt- 
ed it at different periods, and modified it 
in various ways, there was no uniformi- 
ty in uhe law ; and even if there had 
been a uniformity, we were not a na- 
tion, and therefore could have no law 
common to the whole. Thefe argu- 
ments would likewife apply to ihew 
that it was not adopted by the United 
States intheirconfederatedcapacity when 
they firft took a rank among the nations 
of the earth, or in other words, when 
they declared themielves independent of 
Great Britain, and afifociated for the 
purpofes of common defence. The ob- 
ject of this confederation was defence 
only, and not internal government. 
The ftates each became fovercrign and 
independent, and referved to themfelves 
the power of felf government. Many 
of them by their conftitutions adopted 
the common law as it had been modified 
by their own provincial ftatutes, and 
gave to their legiflatures the power of 
changing it whenever circumftances 
might require. Congrefs had no pow- 
ers given to them ; but every thing 
was done by recommendation, and when 
afterwards certain powers were veiled in 



[ 



congrefs by the articles of confedera- 
tion in 1781, they were of a general na- 
ture relating to the war only, and no- 
tiling like an authority to eilablifn 
Courts or to grant judicial powers ; and 
J think it would look like an ahiurdity 
to fay that the common law of England 
became at that time the common law of 
the United States, when the only body 
reprefenting the United States (that is 
Congrefs) had no power to cftabjifh tri- 
bunals to carry this law into operation. 
But, fir, I think it will not be feriouily 
contended, that the common law of 
ind became the common law of the 
-i State*, either as a confequence 
emigration of our forefathers, or 
by virtue of the declaration of indepen- 
dence, or the articles of confederation. 
I (hall therefore beg leave to examine 
another ground, which gentlemen may 
think more tenable. 

- We have been told by the member 
from Delaware, that without the com- 
mon law, the constitution would be a 
dead letter. Every {fate in the union 
he fays has adopted it ; and he aiks 
it is denied to the federal conftitu- 
thm i I could have wifhed that on this 
iubject as well as many others, the gen? 
tieman had offered us fomething like ar- 
gument, inftead of mere wild and arbi- 
trary ailertion. However highly we 
may eftimate his talents, he mini not 
expect that we are to yield to his politi- 
cal dogmas. We flatter ourfeives that 
the conftitution may (land and flouiriih 
without thofe invigorating principles of 
ithfe common law, which the gentleman 
is anxious to infufe into it. I agree that 
it has been adopted under various modi- 
fications by the refpective {fates ; but I 
do not admit that it has been adopted 
by the federal conllitution. Where the 
{fetes have adopted it, it has been by a 
folemn and pofitive act, exprefsly recog- 
niilng it as a part of their code of laws. 
I -might challenge the gentleman t^ put 
his finger on any part of the federal con- 
ftitution containing any recognition of 
it whatever, as a law of the United 
Sa.tes. Is it to be found in the enume- 
ration of the powers veftedin the legif- 



lature ? Is it to be found in the ermme* 
ration of the powers vefled in the exe- 
cutive, or it) the enumeration of the 
powers veiled in the judiciary ? It is t& 
be found in neither. Is this adoption 
of the common law to be found in any 
article contained in the original inflru-? 
njent, or in any ot tke amendments af- 
terwards engraLtd upon it I In one of 
the amendments, we find the words 
common law ufed, but 1 prefume it will 
not be contended that the common law 
was adopted by this article, for it muli 
be obvious to the plaineft legal under- 
fhmding, that the words suits at common 
law arc only ufed in contradistinction 
to suits inequity. In the latter cafes, 
the trial by jury is not ufed., but in the 
former the trial by jury is preffrved by 
this amendment. And when the rules 
of the common law are mentioned in 
the latter part of the fame article, they 
are merely referred to as rules of pro- 
ceeding which are to govern in motions 
for new trials, and a few other cafes 
where facts decided by the verdict of a 
jury may be re-examined ; but it can 
have no operation to confer jurifdiction. 
Might I not be permitted to alii why 
the common law of England was adopt- 
ed by our conftitinion more than the 
ot any other nation ; more than the 
laws of France, Spain, Sweden, or Hol- 
land. When the conftitution was form- 
ed we were more intimately connected 
with thofe countries than with England, 
becaufe with fome of them Ave had trea- 
ties of alliance, withal! we had treaties 
of commerce. Betides if the common 
law of England was adopted by the con- 
llitution, a very ferious queft.on might 
arife whether the common law did not 
thereby become a part of the conftituti- 
on ; and it a part of the conllitution 
all laws iince paffed by congrefs contrary 
to the principles pf the common law 
would be null and void., Such for in- 
(lance as the act declaring the punifh? 
ment of naan flaughter and feveral o- 
thers. That this would be a fair con^ 
ilruction maybe gathered from the opi- 
nions of thofe who formed the conftitu- 
tions cf Ntw^York, Jgrfey, Delaware 

: 8 



[ 



10 



] 



Maryland, and South Carolina* and 
likewife from the convention of Virgi- 
nia ; who all retained the common law, 
but exprefsly declared it to be fubject to 
the future alterations of their refpective 
legiflatures. Now if the common law 
was adopted by the conftitution without 
any provifion that it mould be fubject to 
future alteration by congrefs, a queition 
might certainly arife whether congre la 
would have the power of palling any law 
varying the common lav. However if 
this difficulty is got over, another not 
very inferior in importance, immediately 
prelents itfelf* If the conftitution a- 
dopted the common law, or the common 
law attached itfelf to the conftitution, it 
immediately became a law of the United 
States, and is paramount to the laws 
and eonftitutions of the individual 
ftates. Wherever therefore the eonfti- 
tutions or laws of the lhtes modified 
the common law, fuch modification was 
of no effect ; for whenever a law of the 
United States clafhes with the conftitu- 
tion or law of one of the ftates, the 
ftate conftitution or lav/ niuft give way, 
as has been folemnly decided by the fe- 
deral courts in more inftances than one ; 
particularly in the cafe of Vanhorne's 
lefTee againft Dorrance in the circuit 
court of Pennfylvania, and in the cafe 
ef Ware and Hylton upon a writ of er- 
ror in the fupreme court of the United 
States. Whether the people of this 
country are inclined to fubmit to the 
train of evils v;hich would follow the 
eftablKhment of this principle, does not, 
I prefume, admit of a doubt. 

The gentleman from Delaware, how- 
ever feems to conftder the exigence of 
the common law, as a law of the United 
States, as a matter of necefiity. He 
tells you if you go into your courts of 
•jufticewith the mere ftatutes, you can- 
not proceed a ftep, you cannot even pu- 
nilh a contempt. Khali here be allow- 
ed to alk if it is the idea of that gen- 
tleman, that our federal courts..have an 
authority to enforce the common law 
docliine.of contempts ? If by the ope- 
ration of the common law they have a 
right to punifh one contempt ; I pre- 



fume they have the fame right to punifb 
all. Let us then take a view of thefe 
common law contempts. 

If one man ftrikes another in the fu« 
perior courts in England or even at the 
aflizes, it is a contempt of a very high 
nature, and is puniflied at common law 
by cutting off the right handy imprison- 
ing at for lift) forfeiture of goods and 
chattels, and of the profits of land dur- 
inglife. To refcue aprifoner from any 
of the faid courts is another very high 
contempt, and is puniflied by the com- 
mon law with imprifonment for life, 
forfeiture ©f goods and chatties, and of 
the profits of land for life. There are 
a great variety of fmaller offences like- 
wife denominated contempts for which 
the common law inflicts fine and impri- 
fonment, and if the court pleafes corpo- 
ral or other infamous punishment. This 
is a flight fpecimen of the mildnefs of 
that common la*v, upon which the mem- 
ber from Delaware has pronounced fo 
high an eulogium ; and thefe are the pu- 
nishments which your courts of juftice 
could not inflict without the wholefome 1 
afnftance of the common law. But, 
fir, it maybe fhewn that the courts of 
judice of the United States do not re- 
quire the aid of the common law to ena- 
ble them to punifh contempts ; for it is 
declared exprefsly by the 1 7th lection of 
the ad of September, 1739, eftablifh- 
ing the courts, that they fliall have 
" power to punifh by fine anc 1 imprifon- 
ment, all contempts of authority in any 
cafe or hearing before them." The 
gentleman therefore was grofsly mifta- 
ken when he faid it was necefTary to call 
in the common law, to authorize the 
courts to punifh for contempts ; although 
the act of congrefs does not go quite fo 
far as the mild provifions of the common 
law, which cut off the right arm of the 
offender. By this act it is likewife de- 
clared, that the federal courts fliall have 
power to grant new trials, and to admi- 
nifter all neceffary oaths and affirmati- 
ons. This was certainly quite nugato- 
ry, if the common lav had attached it- 
felf to the conftitution ; becaufe thefe 
are powers which the' ftate courts and 



C " 3 



thofe of England exercife by virtue of 
the common law ; and if it had been the 
idea of thofe who have gone before us, 
that this common law was the law of 
the United States, they would not have 
vefted in the courts the fame authorities, 
which they had by the corarno-n lav/. I 
believe, fir, I could take up our laws re- 
lative to the judicial eftablifhment, from 
the commencement of the government 
to the prefent day, and could mew that 
congrefs have from time to time vefted 
in the courts and judges a variety of 
powers, which they would have had, if 
the common law had been the law of the 
United States in their federal capacity. 
But I will refer to one inftance only 
where it w?s thought neceffary to pais 
a fpecial law for the purpofe of giving to 
your judges one of the lowefl common 
law authorities. In the year 1798, an 
act, of one fection only, paffed, autho- 
rizing the judges of the fupreme court 
and of the feveral diftrict courts, to hold 
to iecurity of the peace, and good beha- 
viour in any cafe arifing under the con- 
ftltution and laws of the United States. 
At common law, the judges, are by vir- 
tue of their commifiions, ex officio, con- 
fervators of the peace, and if tlrs law 
had been the federal law, there could 
have been no neceffity for palling the act 
juft alluded to. Again, by the common 
law, a perfon charged with treafon is 
allowed a peremptory challenge of thiny 
five jurors : yet this right of challenge is 
likewife exprefsly given by act of con- 
grefs paiTed in 1789. The fame act 
provides for the puniihment of murder, 
in p!ac< s under the exciufive jurifdiction 
of the United States, as forts, arfenals, 
Sec. and limits the number of challenges 
to twenty ; yet thefe proviiions are pre- 
cifely the fame as at common law, a- 
mended by a variety of ftatutes a leng 
time before the emigration of our ances- 
tors ; and I pi-efume it is not contended 
that the common law was brought here 
vithout the changes antecedently made. 
If however the common law was intro- 
duced originally by our forefathers and 
afterwards attached itfelf t&our con/ti- 
tuuon, by its own wonderful magic, I 



aft: why not the ftatute law likewife ? 
The fame juridical principle will apply 
as well to the ftatute law as the com- 
mon law, and the two together will fur- 
nifh gentlemen with an extenfive field 
to wanderin, which I cheerfully abandon 
to them. 

I think, fir, I have fully proved that 
the common law ot England was not in- 
troduced by our anceilorsat the time of 
their emigration, as a general and uni- 
form law prevailing over all the extent 
of country comprized within the prefent 
limits of the United States, becaufe the 
feveral colonies were planted at feverai 
periods, fome of which were as remote 
from each other as one hundred and fifty 
years, becaufe it was changed and modi- 
fied at pleafure by the refpeetive pro- 
vinces ; and becaufe we were not at that 
time a nation, and therefore required 
no general uniform law to govern us. I 
think I have proved that it was not a- 
dopted by the declaration of inde- 
pendence, becaufe we aflbciated on- 
ly for mutual defence againft a 
common enemy, and there were no gene- 
ral queftions among us which could pof- 
fibly require the interference of the 
common law, and Congrefs had no power 
to eftablifti courts to carry the law into 
execution. And I think I have proved 
that it was not adopted by the confti- 
tution, becaufe there is no part of the 
conftltution declaring it to be the law 
of the land ; becaufe its implied adoption 
without limitation or reftraint, would 
either make it a part of the conftitution 
itfelf and thereby prevent a moft valua- 
ble exercife of legiilative authority ; or 
by making it a law of the United States, 
would give it a controuling and repeal- 
ing- or nullifying power over the laws and 
conftitutions of the individual ftates ; 
and becaufe almoft every Congrefs by 
enacting a variety of provificns already 
eftablifhed by the common law, expreif- 
ed an opinion, moil: unequivocally, that 
the common law was not the law of the 
United States in their national capaci- 

The common law can have no poili- 
b'e exiftencc in this country, but as it 



C I 2 3 



' '^een introduced by tfee refpective 
ftates. Some have ingrafted it into their 
body cf lavs by their conflitutiojia ; oth- 
ers by expvefs ftatute, and in one or two 
inftances perhaps the dates have ufed and 
praCiifed it from their original coloniza- 
tion : For it is not denied that the feveral 
colonies brought with them inch, both 
of the fiatute and common law, as was 
applicable to their fituation. But the 
common law as introduced, ufed and 
Jsractifed in any one flate can only be con- 
lidered as a flate law. After it was re- 
tained by Maryland, by an expvefs article 
of her conllitution, it was no longer the 
common law of England as fuch, but 
thereby became the law of the (fate of 
Maryland under the various modifica- 
tions which had been made by the pro- 
vincial affemblies ; and fuch it remains 
at this day. As a ftate law then it can- 
not be conftrued to give jurifdiction to 
the federal courts, any more than the 
numerous acts of afiembly which have 
paffed both before and fince the revolu- 
tion. By the common law of England 
as it exifh there, and as it likewife ex- 
ifts in Maryland, Kidnapping, or the 
forcible abduction or ftealing of man, 
or woman or child, is an offence punisha- 
ble with fine, imprifonment and pillory : 
a ftatute of Maryland declares the deal- 
ing of a flave to be a capital offence ; 
now neither of thefe laws can give the 
federal courts any jurifdiclion over thefe 
offences, becaufe they are both ftate laws, 
although one of thera is like wife a part of 
the common law of England* 

Murder is an offence punifh&ble, 1 be* 
li?.ve, in all the ftates with death, and re- 
mains as at common law, modified by 
feveral old ftatutes, which our forefath- 
ers brought with them at the time cf 
their emigration, yet the federal courts 
tan have no jurifdiclion over the crime 
of murder unl fa committed in a fort or 
arfenal ; and this is, exprefdy declared by 
act of Congrefs to be punifhable with 
death if* committed in thofe places. And 
permit me once again to obferve that 
this fbews that Congrefs at the time of 
parting the law (in 17S9) entertained no 
idea that the federal courts could panifll 



murder by virtue of airy other authority 
than that exprefsly derived from a fta- 
tme. 

" Cuffing orwifhingill to the King" 
is an offence puniihable at common law 
by fine, imprifonment, and pillory : but 
this is not the lav/ of any of the ftates * 
becaufe after the declaration of inde- 
pendence we had no King, nnd therefore 
it was not applicable to our fituation. 
To curfe or wifh ill to the governor of 
a ftate, could not be punifhed, although 
lie is the chief -magiftrate of the flate ; be- 
c rt ufe curfing or wiming ill tothe King of 
England is a contempt again ft his person 
and government : but in America we do 
not regard the majefty of perfons, nor do 
we admit that the Government belongs 
to any one man, but to the whole people- 
However even if this part of the com- 
mon law did form any part of the codes 
of the refpective ftates, it could give no 
jurifdiction to the federal courts, being 
a flate law. It is with much regret, Mr* 
Chairman, I have heard that a man in 
New-Jerfey was indicted at common 
law, and punifhed by a federal court, for 
expretling a ludicrous wifh in relation to 
a former Prelident of the United States : 
aperfonage not known to the common 
law* Yet common law jurifdiction was 
aflumed by the federal court over this of- 
fence, and the facred perfon of the Pre- 
fident was fubftituted for the facred per- 
fon of the King. 

In fine, fir, my opinion is, and I fin- 
cerely believe it to be a correct and con- 
ftirutionai opinion, that the common law 
of England, either as fuch, or as it has 
been introduced into the feveral ftates, 
is not the common law of the United 
States in their national or federal capa- 
city, and cannot therefore operate to give 
the federal courts any jurisdiction* On 
the prefent occafion, I wifh to exprefs 
my decided difappi obation of the doctrine 
c ntended for by the gentleman from 
are, that the federal iudgps have 
a discretionary power to introduce fuch 
parts o': the common law as they pleafe, 
and as they may think, do or do not be- 
long to us. This difcretionary pewer in 
; o is dangerous to liberty. It will 



[ 13 ] 



fap tke foundation 01 your conflitutibh 
itfelf. It will place the life and property 
of every man in the community, in the 
moft precarious fituation. All i'ecurity 
will be loft, all confidence will be deftroy- 
ed. To veft a diferetionary power of 
this kind in a judge, is -.0 veft him with 
an arbitrary and unconflitutional power. 
That able and upright judge, the moil 
excellent Lord Camden, who was an or- 
nament not only to his profeffion, but to 
bis country and to human nature, de- 
clares, that " the difcretion of a judge 
is the law of tyrants ; it is always un- 
known : it is cafual and depends upon 
Conftitution, temper and habit. In the 
beft it is often caprice ; in the worft, it is 
every vice, folly aiad pallion to which 
human nature is liable." 

I have dwelt longer on this fubjfcft, 
Mr. Chairman, than I intended ; but as 
it is important, I truft I (hall obtain the 
pardon of the committee. Thinking as 
I do, it was impoffible for me to have 
faid lefs. Having feveral times heard 
the gentleman trom Delaware maintain 
a fimilar doctrine on this floor, I have to- 
day thought it my duty to examine it 5 
to ftate fome reafons to mew the doctrine 
to be incorrect, and others why it ought 
not to be admitted. How far I have fuc- 
ceededed the committee will decide. — 
Infinitely more might be faid, but as the 
evening is advancing I will no longer 
trefpafs on your patience now. To-mor- 
row I will again afk the indulgence of 
the committee, for the purpofe cf offer- 
ing fome remarks more immediately con- 
nected with the fubject under considera- 
tion — [Mr. Nicholfon fat down, the 
committee rofe, and the houfe adjourn- 
ed.] J 

Saturday, February 27. 
Mr. NicHOLsoN-^-(in continuation) 
©ffered his acknowledgments to the com- 
mittee for confessing- to hear him again 
to-day, after the very tedious, though he 
honed not ur.interefting difcuflion ot yei- 
terday, in relation to the common law. 
From the conftru&ion which had been 
given to our laws and conftitution, not 
only in the houfe, but as he had under- 
ftood by fome of xhtz federal judiciary, he 



thought it the duty of every man to dire& 
his attention to this fubject, as it involv- 
ed principles more important than were 
apparent at firft view. Under this im- 
preflion he had offered fome obf 
to the committee, which he flat 
himfelf would not be totally unacc 
ble. In doing this he hac 
as poffible, for he -well khev 
fill a volume, if all were collected v 
might be laid in opposition tc the o r 
that the common law of Englah'c 
the common law of America, as a n . 
He would now, fcow.ver, proceed ■. 
difcuffion of the fubject more immed 
ly under confederation. 

As I have already occupied more tii 
than I either expected or wifhed, I 
no doubt I fhall be excufed for p 
over the iramenfe folio of extrai 
matter which the gentleman from D Ia- 
ware has introduced. It will affori 
an opportunity, at the fame time, of par- 
ting by that lift of names which the gen- 
tleman held up to our view, and which 
he exhibited in colours by no means flat- 
tering. — Were I inclined to purfue the 
courfe which he has pointed out to me, 
I might prefent a catalogue ol his poli- 
tical friends, covered with as miferab-le 
a daubing as his own ; but I difdain it. 
Private feeling and private character 
fhall never be made the fubjedt of my 
animadverfions in this houfe. 

The expediency of the prefent repeal 
is the firft point to which gentlemen feem 
to have directed their attention. In or- 
der to fhew the neceffity of the law of 
the laft year, they have pointed out nu- 
merous defects, as they fuppofe, in the 
©Id fyftem.. The member from Dela- 
ware, after laviftiing the higheft encomi- 
ums on the gentleman who is faid to be 
the author of that fyftem, has undertaken 
to fhew, that it was Cunftruded upon fal- 
lacious principles. The fallacy of thefe 
principles he fays, was diicov^red in prac- 
tice, and anew organization cf the courts 
became neceffary. Since I have been 
able to form an opinion of the relative 
merit of the political characters in 
this country, there are very few indeed 
whofe talents I have heard more com- 



[ i* 3 



Wended than thofe oF the gentleman al- 
luded to. On no occafion has his wifdom 
or the folidity of his judgment appeared 
more confpicuous to my mind than in 
the formation of the firfc judiciary fyftem 
of the United States. In a government 
like ours, extending over a large tract 
of country, and cornpofed of fore reign 
ftatec, independent of each other, confe- 
derated for the purpofe of mutual de- 
fence and mutual protection, it was 
rightly judged that its judicial powers 
fhould not extend to any other cafes of 
judicial cognisance, than thofe which 
might be deemed fomewhat of a general 
nature, and whofe importance might af- 
fect the general character or general wel- 
fare of the union. It was forefeen that 
thefe cafes would not be very numerous, 
and experience has proved the correctnefs 
of this opinion ; for in the twelve years 
that have elapfed, but about eight thou- 
fand four hundred fuits haye been brought 
in the federal courts, exclufive of admi- 
ralty caufes ; or about feven hundred 
fuits for each year in the whole ©f the 
iixteen ftates. — Of thefe, fifteen hun- 
dred now remain undecided, which are 
nearly equal to thofe of the two Iail 
years. In order to fhew the incompeten- 
cy of the courts, as exifting under the old 
eftabliftirnent, gentlemen ought to prove 
that this is an unreafonable number to 
be at this time pending. I aflc them if 
this does not prove as great a difpatch 
of bulinefs as in any courts in the 
world ? In the circuit court of Mary- 
land, I believe the fame rules have been 
adopted for the difpatch of bufinefs as 
are practifed, in the general or fupreme 
court of the ftate ; and I believe it is 
likewife a rule, that caufes fhall conti- 
nue the fame length of time. By the 
laws of Maryland, a caufe may conti- 
nue two years in that court, and of 
courfe a caufe may continue two years 
in the circuit court. What the rules 
may be in other courts refpecling the 
continuance of caufes, I do not know, but 
if a fimiliar rule prevails in all the 
courts, no doubt can poffibly exift that 
bulinefs Ins been as well difpatched in 
the federal circuit courts as it can ever 



be. Moft of the caufes brought in the 
federal courts, I prelume, are important, 
and are controverted. Whenever there 
is a controverfy it is aim oft impoffible to 
get your pleadings in a ftate for trial in 
lefs than two years, where there are on- 
ly two terms in each year ; and this 
of neceflity compels a continuance for 
two years. My idea on this point is 
eaiily exemplified. 

Suppofe 350 fuits brought at 

May term 1799 350 

the fame number at Octo- 
ber term 1799 350 
the fame number at May 

term 1800 
the fame number at Octo- 
ber term 1800 
the fame number at May 
term 1801 



: 



1750 



It would follow that feven teen hun- 
dred and fifty fuits would be brought 
to thofe five terms and the dockets of 
May 1801, would exhibit 1750 fuits 
then depending. If the firft three hun- 
dred and fifty were decided at that time, 
fourteen hundred would be left on the 
dockets in June 1801, at which time 
the lift now before us was taken. But 
the delays which are neceffarily incident 
to trials at bar, and in chancery, would 
furnifh at leaft a poffible prefumptton 
that the whole brought at the firft term 
could not readily be tried at the fifth, 
for want of teftimony, the defective 
ftate ©f the pleadings, demurrers, mo- 
tions for new trials and fundry other cau- 
fes. Let me then again repeat, that as_ 
fifteen hundred fuits only remain pend- 
ing, bufinefs muft appear to have been 
well difpatched, and no argument can 
be drawn from the fuppofed incompe- 
tency of the courts. 

But, fir, the firft objection which 
gentlemen have ftarted to the old fyf- 
tem, arifes from the itinerancy of the 
judges. They are ftated to be old men, 
who have paiTed the meridian of life, 
and it cannot be expected that they 
fhould ride through the continent for the 



[ 15 J 



purpofe of holding courts. They num- 
ber, fays the member from Delaware, 
the viginti annorum lucubrationes, and 
mud now have leiiure to vead, to repair 
the ravages of time, or in other words, 
to prevent them from forgetting what 
they had before learned. I truft Mr. 
Chairman, that I feel as much reverence 
for old age as moft men, and I flatter 
xnyfelf I am not totally unacquainted 
with the requifite qualifications of a 
judge : but indeed gentlemen mull ex- 
cufe me, if I do not confent to pay a man 
four thoufand five hundred doliars a 
year ' to. prevent him from forgetting 
what he had before learned.' 

Give me leave however to afk, if thefe 
are the evils which have been dif cover- 
ed by practice ? This old fyftem has 
been called an experiment : permit me 
to afk, if thefe are the evils which ex- 
perience alone has brought to view ? 
When the great man, alluded to by 
the gentleman from Delaware, framed 
this fyftem ; when he defended it in the 
fenate of the United States, as I am told 
he did, with all the energies of his mind, 
againft the objections which were then 
urged to it, was it not in his power to 
calculate the labour of travelling over 
a certain extent of country ? Or if this 
was an exertion too great for his pow- 
ers, were there no men in congrefs with 
fagacity enough to difcover this mighty 
objection ? Was it one of the arcana 
left for the laborious refearches of the 
prefent day ? The extent of country has 
not fince increafed. Bridges are not 
kept in woife order, nor do rivers rife 
higher now than they did at that time. 
In truth all the means of travelling are 
more eligible and commodious. The 
roads are better, the houfes of enter- 
tainment more numerous, the number 
of ftages greatly encreafed, and gentle- 
men are not now under the neceflity of 
ufing their own carriages. Yet notwith- 
standing thefe difficulties' which then 
prefented themfelves, but have fmce 
been removed, men of the moil eminent 
talent9 were readily found, who were 
willing to accept the places of judges 
and were not afraid of meeting the in- 



conveniencies which are now complain- 
ed of. It cannot therefore be urged 
with propriety that the itinerancy of the 
judges is one of the objections which 
has been proved by a trial of the expe- 
riment. But it is faid to be too labo- 
rious, too fatiguing for a judge to be 
compelled to ride from New-Hampihire 
to Georgia, for the purpofe of holding a 
court. Sir, when thefe courts were firft 
organifed, the United States were divid- 
ed into three circuits ; the Eaitern, the 
Middle, and the Southern. Six judg- 
es were appointed, two of whom were to 
ride in each circuit for the purpofes ef 
holding a court in conjunction with the 
diftrict judge. Of this, however, the 
judges complained, and for their relief, 
a law pa (Ted requiring one fupreme 
judge only to aflbciate himfelf with the 
diftrict judge. This was in fact divid- 
ing the United States into fix circuits, 
for no one judge was compelled to ride 
beyond the two flates immediadely ad- 
joining that in which he lived. It is true, 
that no judge was ebliged to go twice 
into the fame ftate until every one of his 
brethren had taken his turn in it, but 
this was optional with them, and if thro' 
caprice, or a defire ef change, or any o- 
thercaufe they could not agree among 
themfelves, I cannot think that it ought 
to be confidered a fuf&cient reafon to 
reorganife the whole fyftem. By the ac\ 
of 1792, they were authorifed to ai- 
fign to each other the feveral circuits in 
which they were respectively to ride, 
and if they have made inconvenient ar- 
rangements, it can only be imputed to 
themfelves ; they are at liberty to 
change them whenever they think pro- 
per. Why then is it alleged, that z, 
judge was obliged to ride from New- 
Hampihire to Georgia, when a gentle- 
man living in the New-England 
ftates was never compelled by law to 
come into any diirricl farther South, 
than Connecticut. But no arrangement 
of this kind was made. A judge redd- 
ing in the eaftern Hates, for the fake of 
pleafure, to fee the country, or for fome 
other caufe, we find travelling with <; all 
the agility of a poft-boy," from New- 



C 16 ] 



Harapfhire to Georgia for the purpoPe 
of holding a court; while another read- 
ing in the fouthcm country, with the 
Jjprightlinefs and activity of youth, " ftu- 
: the law upon the road" has flown 
from Georgia to New-Hampfhire and 
held his court there. I again afk where 
was the neceflity of this ? If they impofe 
upon them Pelves a labour four or five 
times greater than that which the law 
requires them to perform, is it right to 
call this excefs an evil, and impute 
that evil to the law ? 

If the bill now upon the table mould 
pafs, let the judges of the fuprcme court 
make fuch arrangements as will be agree- 
able to them Pelves. Let the judge re- 
fiding in MafPachuPetts confine himPelf 
to the New-England ftates ; let the judge 
in N<s>rth-Carolina travel Pouthward ; and 
let the other judges perform their duties 
in the middle ftates. They will not then 
fuffer the inconvenience complained of. 
The mountains which have been raifed 
by the gentleman from Delaware will 
fall before them. The wilderneffes which 
have fprung up in his imagination will 
be turned into fruitful plains and plea- 
fant villages. The judges will have lei- 
iure to read to prevent them from forget- 
ting what they had before learned, and 
will be enabled to add to the viginti 
annorum lucubrationes. 

Another powerful objection with the 
gentleman from Delaware to the old 
fyftem, is, that the Pupreme court was 
formed by the judges who held the cir- 
cuit courts. By this organization the 
whole advantage derived from the right 
of appeal he Pays is deftroyed ; becauPe 
when an appeal comes up, each judge 
will be afraid ~o decide againft the opi- 
nions of his brother, inafmuch as to- 
morrow that brother will have to decide 
upon a judgment given by himfelf. In 
God's name, fir, what kind of objection 
is this ? Will one of thefe venerable cha- 
racters, Pelecledfor his wifdom Sc virtue, 
be induced by tht pride of opinion, to 
forget the facred obligation of his oath ? 
Can it be poffible that a man who has 
paiTed the meridian of life, and enriched 
his mind with the lucubrations of twenty 



years, will facrifice the corre&nefs ofhU 
judgment, and the integrity of his heart 
to the vain pride of a boy, or the often- 
tatious folly of a coxcomb ? — God fuibid 
that our bench Ihould be filled by men 
of this description. The citizen is no 
Ipnger Pccure in his liberty and his life. 
The depravity which could feel fuch an 
influence would know no limits. Ava- 
rice and ambition would not be outdone 
by pride, and each in its turn would rule 
him. But, (ir, I truft cur country is not 
yet To loll. I hope experience has not 
yet taught us to believe that our judges 
are to be influenced by any but the pureft 
motives. If we cannot confide in'thern 
to revile the opinions of each other, they 
ought not to be entrufted with the ad* 
ininiftration of jullice, even in the lowed 
grade. I cannot agree with the gentle- 
man that-the fenfe of appeal is the great 
check upon the confeience of the inferior 
judge. I truft to his integrity as a man, 
to the high obligation of his oath. When 
thefe are Purrendered or forgotten he is 
under the influence of no other check. 
If thefe are not our great fecurity, our 
iltuation is deplorable indeed. Our laws 
and conftitution muft be changed ; toi- 
let it be remembered, that in criminal 
cafes there is no appeal. In cafes affect- 
ing the life or liberty of the citizen, the 
judge has no check of this kind upon his 
confeience ; and if we cannot rely upon 
his integrity and his oath, our conltitu- 
tion and our laws afford us no fecurity. 
If the conftitution and the laws will not 
bind kirn, if he is loft to every fenfe of 
honor and virtue, if he will facrifice the 
faith which he has pledged m the prcience 
of his God, to the vain pride of opinion, 
he can never be relief on, and is unfit to 
be a judge. To argue, therefore, from 
this 1'uppoPed depravity of our nature, is 
to argue from a principle which no power 
on earth can controul. 

For my own part, I have always believ- 
ed that a court of appeals, thus organiz- 
ed, was of the molt valuable kind. I 
coufider it the molt effectual method to 
fecure a uniformity of deciiion. By ap- 
pointing one Pupreme tribunal for the 
purpofs of hearing appeals, with a limit* 



17 



] 



cd original jurifdiction, a very fmall por- 
tion of their time as a court of appeals 
will be occupied. — They will diverge 
into different parts of the union, where 
they will be engaged in deciding coutro- 
veriies, anal will have an opportunity of 
hearing all the argunvMits of council ; 
when they again affeinble at toe feat of 
government with their brethren, they 
will bring with them the principles upon 
which ail decifions have been made be- 
low, and though not authorized to de- 
cide upon appeals from judgments ren- 
dered by themfelvrs, yet by offering the 
reafons which influenced them below, 
will either have an opportunity of con- 
vincing their brethren, or of having their 
own errors corrected. A companion of 
opinion upon great and leading points, 
will enable them to carry out into their 
federal circuits, the opinions of the 
whole, with the arguments upon which 
they are founded, and the fame deciiion 
upon the fame or fimilar points will, of 
conf-.-quence, be made in every part ofthe 
union. By thefe means a perfect unifor- 
mity of deciiion will be eftablilhed, and 
permit me to fay, that this will be the 
only method of fecuring this uniformity 
nntil profefTional gentleman engage in 
reporting cafes. At this time I be! ; eve 
there is but one reporter of cafes decided 
in the fupreme court, and he, I readily 
admit, is a mod valuable one ; but it is 
impomble to fay whether he is now con- 
tinuing his labours, and will favor us with 
another volume. When your court of 
appeals is condituted entirely didio.ct 
from your inferior courts, and is at':e;;a- 
ed by only a fmall proportion of the gen- 
tlemen of the bar, refiding either at the 
feat of government, or coming from the 
middle itates, I do not know how the de- 
cifions of the fupreme court are to be 
known in the eaftern and fouthern coun- 
try. But by fending your fupreme judges 
to ride the circuits, you fend out with 
them the dec fions of the fupreme court 
and edablifh the molt perfect uniformity 
throughout all your inferior courts. 

To (hew, however, that this uniformi- 
ty did not prevail, the gentleman from 
Delaware advanced two indances where 



fucceflive judges differed from each o- 
theri The firft on the law of attac'h- 
m nts, the other in relation to clia 
proceedings. That thefe in . . 
cies may have been felt 1 mall not pre- 
tend to deny ; but permit me to fay that 
they neither arofe from the defects of the 
old iyftem, nor were they provided a- 
gainlt by the new one. They arofe from 
the c ire urn fiance of Congrefs not having 
legislated on thefe fubjects. I differ with 
the gentleman, when he fays, that thefe 
arc mere matters of practice. Sir, they 
involve important principles ©flaw. The 
one goes to the feizure of a man's goods 
and chattels, the other authorizes your 
judges to fign a decree againft him upon 
an ex parte hearing, by taking the bill 
of the complainant pro confesso, — Rules 
of practice may be fettled by the judges 
themfelves ; but thefe are principles that 
ought to be fettled by the legillature a- 
lone, as all others ought t» be, wherein 
the laws of the dates differ fo very ma- 
terialy. In Maryland they are regulated 
and d.-fined by exprefs ftatute, and the 
equity jurifdiction of yonr Iburts will not 
be worth pursuing unlefs you point out 
their modes of proceeding. In thofe 
dates where they have no chancery courts, 
as is the cafe in Pennlylvania, and 1 be- 
lieve all the New-England dates, I can 
readily conceive that a judge would be 
at a lofs, for I cannot imagine what 
rules of proceeding he would be guided 
by. If there is any date in the uni- 
on, in which a judge would feel him- 
feff bound to purfue the practice in Eng- 
land, of iiTuing rird the subpoena, then 
the attachment, afterwards the attach- 
ment with proclamations, to be followed 
up by the commission of rebellion, and 
finally the sequestration, the procefs 
would be fo extremely tedious that it 
would almoif difcourage a fuitor from 
going into your courts. Give me leave 
again to {ay, that if thefe are evils arifing 
from the defects of the old fydem, they 
were not remedied by the new one. They 
never can be remedied until Congrefs 
legiflate on the fubject. By enacting the 
law of lad fefiion you did not provide 



C 18 ] 



againft them ; by repealing that law you 
will not revive them. 

1 hope I may be allowed to pay fome 
attention to another ocfervation of the 
gentleman from Delaware, which Teems 
to hsve been produced, not by any thing 
faid on this fide of the houfe, but by a 
phantom which he himfelf has railed. — 
H tells us if we " truft the execution 
ic federal laws to ftate courts, in ten 
we fhali have neither law nor con- 
ftitution.7 I believe, fir, an idea of 
this kind has never been expreffed by 
any q e. Matters of high importance, 
pr/jperly belonging to the federal judi- 
, weviiii u> leave to them ; but if 
ftdvval jui idiction is to be extended to 
all cafes, ] would venuue to affirm that 
in ten years your ftate laws and confti- 
tutibns would he entirely l'wallowed up. 
Nothing would have lo ftrong a tendency 
to confolidate the union, as nothing 
could more effe&ually deftroy the ftate 
fovereignties. By confining both to 
their proper orbits, the fafety and har- 
mony of both w-ill be preferved. For 
myfelf, however, I have no hefitation in 
de' luring that if all judicial power is to 
be exclusively veiled in the one or the o- 
ther, I would give the preference to the 
ftate courts, inafmuch as I prefer a go- 
vernment truly federal to a consolidation 
of the union. The gentleman likewife 
thought there were fome who would 
willingly reftricl the junia'icVion of the 
federal courts for the purpofe of extend- 
ing the powers and influence of theftite 
courts. If he means by this that there 
are Come who would like to fee a part of 
the bufint-is now tranfacUd in the fede- 
ral courts, tranflated to the (late courts, 
I unite with him in opinion and avow 
mylelf one of thofe. I think much of 
the bufineis may be done with equal fafe- 
ty and much lefs expence in the ftate 
courts ; and for my own part fhouldlike 
to fee the juriiditlion of the federal 
courts more reftridted. Inftead of giv- 
ing them cognizance over funis of live 
hundred dollars, for inftance, I would li- 
mit their jurifdiction to a thoufand. — 
And where I afk would be the evil ? I 
know it has been heretofore faftiionable 



to fay, and the gentleman from Connec- 
ticut (Mr. Grifwold) has repeated it, 
that prejudices might exift in the ftate 
courts, and that a foreigner, or a citi- 
zen of a different ftate might not have 
juftice impartially dealt out to him. Sir, 
this is an odious objection. Tt is an ob- 
jection not founded on experience. It 
contains a charge aga'mft the character 
of theftates, totally without foundation 
and ought to be repelled. I know very 
little of judicial decifions in other ftates, 
but in the ftate which I reprefent, I aver 
there is no ground for fnch an objection ; 
and I fpeak it with pride and boaftmg as 
a native of Maryland, that juftice has 
never been moi^e purely adminiftered in 
any country on the face of the earth. 
If ever there was a time when prejudices 
againft foreigners might probably exift, 
that time has gone by, and I truft never 
will return. That timewasat the elofe 
of our revolutionary war, after an ar- 
duous ftruggle for our liberties, when 
fcarcely a man in Maryland could look 
around him without feeing a vacancy 
which had been once filled by a brother 
or a friend. It was impoftible to forget 
the enmity which had fublifted between 
Gre.t Britain and this country; it was 
impoflible to forget that Great Britain 
had armed our brethren, and had let 
loofethe lavages of the wildernefs againft 
us. The oppreffions that had been prac- 
tifed, the crueltits we had endured were 
yet frefh in our minds. The feelings, 
which had been routed by a ftrong fenfe 
of injury, were ribt yet fubdued — but 
thefe feelings never found their way in- 
to our courts of juftice. An EngTtfh- 
man and an American ftood upon the 
lame ground. Jullice was blind to eve- 
ry thing but their refpedtive merits. She 
never enquired into the birth place of a 
fuitor, but liftened to his claim with an 
attentive ear, and pronounced her decree 
with an impartial voice. At the com- 
mencement of the war, Britifh merchants 
had claims to an immenfe amount a- 
gainft the citizens of Maryland ; our 
citizens were likewife largely involved 
with each other. The dinrefles of the 
war need not be recounted, but pay- 



[ 19 ] 



merit was impouible. To prevent an 
accumulation of didrefs by compelling 
a dreadful facrifice of property, our courts 
of judice were clofed. In the year 1779, 
however, an expedient was adapted, the 
wifdom of which 1 cannot, I dare not 
queftion. A paper currency was iffued, 
which creditors were compelled to re- 
ceive from their debtors in full difcharge 
of their debts at an equal value with 
gold and filver ; and if they refufed to 
receive it, proof of the tender operated 
as a difcharge. This currency had not 
the confidence of the people, and con- 
fequently depreciated till it became 
worth almod nothing. Still it was a 
tender, and creditors were compelled to 
receive it. Thofe who were indebted to 
Britifti merchants and had debts due to 
them in the country, faw ruin daring 
them in the face — they complained, and 
complained with judice. The leg! Ma- 
ture interfered and declared by law 
that Britifh debts might be difcharged 
by the debtor paying into the date trea- 
sury for the ufe of the Britifh creditor, 
thr- ameunt in paper money, if he would 
rnwke oath he hadreceived it in difcharge 
of debts due to himfelf. This was a 
great relief, and numbers took advan- 
tage of it. They flattered themfelves it 
would prevent their ruin ; but fir, the 
ruin was only podponed ; for the treaty 
of peace came, declaring that creditors 
on either fide fhould meet with no law- 
ful impediments in the recovery of their 
debts, and by an act of Maryland this 
treaty was declared the fupreme law of 
the land. Suits were brought in the 
courts of the date by the Britifh credi- 
tors to recover thofe very deb's which 
had been difcharged under the folermi 
fancYton of a law, and our courts felt 
themfelves bound to decide that the 
treaty operated as a nullification or the 
date law. By this decifion thofe men 
who had been compelled to receive from 
their debtors, paper money in difcharge 
of debts due to them, and had under the 
authority of a law paid the debts due 
from them to Britifh creditors, ivere now 
under the neceffity of paying a fecond 
time in gold and diver. Here was an 



occafion, if one ever exided,upon which 
prejudice might well difcover itfelf ; for 
on this occafion a foreigner was placed 
in a fituation infinitely more eligible 
than a citizen. But the date courts did 
their duty. 

They difdained to be governed by a 
narrow minded prejudice, and decieed 
t© the Englifhman what the laws of our 
country had declared to be juflly his due. 
No local confederations, no attachments 
to the fuffering individuals of their own 
date had any influence upon their minds; 
they undeviatingly purfued the path 
which judicc pointed out to them. Who 
then can dread the future exiltence of 
a prejudice which will deny judice to a 
foreigner ? Let it not be fufpe&ed, for 
there is no grou»d for the fufpicion— 
Nor can there be any reafon to apprehend 
that the date courts will difcover an un- 
willingnefs to execute your federal laws ; 
for in the year 1 792, you gave them 
cognizance of oSVnc.es againd your re- 
venue laws, and as far as my information 
goes they have been faithfully and 
promptly adminidered. 

But give me leave to fay that it is not 
fo much in the court as it is in the jury 
that this prejudice (if any) is to be ap- 
prehended. The jury have a latitude in 
giving their verdict, and may if they 
think proper undertake, by giving a ge- 
neral verdict, to decide both law and 
fact. This is a power more tranfeen- 
dent than that of the court, and may be 
equally dire&ed by prejudice. Yet no 
ofganizatioa cf your federal courts that 
has ever been made can ponihly reach 
the evil, if indeed any Inch evil exids ; 
for both in the date and federal courts a 
jury of the date mud decide. But, fir, 
I am free to declare that I dread no 
fuch prejudice either in court or jury. I 
trud to the integrity of the American 
character, and edimate the virtues of a 
date judge as bighlj as thofe* of a fede- 
ral judge. 

In relation to the expence of the fyf- 
tern propofed to be repealed, various o- 
pinions have been expreffed, fome gen- 
tlemen edimating the faving at forty 
thoufand dollars, a year, others at twen- 



\0 



eight thoufand five hundred. I tkink it 
totally unneceffary to defcend into the 
minutiae of the expence, becaufe the 
fame principle which would impel us to a 
laving of forty thoufand dollars it year 
■would, impel us like-wife to the laving of 
twenty eight thoufand five hundred. If 
the money is thrown away upon a ufelefs 
object, it is our duty to fave it. The u- 
tilhy of he object has not been proved 
iufficiently to authorize an annual ex- 
penditure even of the lowed wf theTe two 
fums, and for one, 1 feel myfelf bound, 
by repealing the law, to make the fav- 
ing. 

The gentleman from Delaware made 
another remark in relation to the ex- 
pence, which I mult beg leave to notice. 
He lays that federal judice, as he is 
pleafed to term it, does not cod one filth 
as much as date juftice. This is a po- 
rtion eqiially indefenfible with molt o- 
thers which he has attempted to main- 
tain. I do not know by what fcale the 
gentleman graduated the relative ex- 
pence ; whether by the number of fuits 
decided, or the fuppofed value of pro- 
perty depending upon the deci lion. As 
to the latter it would be a difficult mat- 
ter to determine, becaufe the data, we 
have, are not fufficient to form an opi- 
nion upon ; but I meat him mod readi- 
ly upon the former. 1 muft necefiarily 
again refer to my own ftaie, for which 
I hope to be pardoned. In Maryland, 
there is a general court with unlimited 
jurifdidtion, which fits four times a 
year; twice on the Wefterri and twice 
on the Eaftern Ihore, & I think I fpeak 
within bounds when 1 fay, that in thefe 
courts at lead three thoufand fuits are 
annually brought. The falaries of the 
three judges amount to fix thoufand 
dollars per year. The jurymen attend- 
ing thefe courts are paid out of the pub- 
lic treafury, and I believe receive 
a fum which including their itinerant 
charges amounts to not more than 
5,500 dollars ; however to make it a 
round fum and to defray fome other 
fmall incidental charges, it may be fixed 
at 6000 dollars. Thus then the trial 
or deeifion of thefe 5000 fuits cods, 



with the faldry of the judges and the 
payment of the jurors, 12,000 dollars, 
orjuft four dollars for each action. It 
is agreed on all hands that the federal 
judiciary cods the United States in the 
aggregate 137,000; the proportion of 
Maryland, (as one-fifteenth part of the 
Union, which is the proportion fhe bears 
in population, in taxation and reprefen- 
tation,) will be equal to rather more 
than nine thoufand dollars. From the 
document number S, which has been laid 
before us as corrected by tlie meffage of 
yeftc-rday, it appears that in the circuit 
court of Maryland for the twelve years 
pad there have been 269 fuits inftituted, 
or about twenty two fuits per year, to 
thefe may be added cafes of admiralty 
and maritime jurifdiction, which go be- 
fore the diftridl court, and a very few 
cafes of appeals that may be carried, to 
the fupreme court, making perhaps in 
the whole about two hundred per year ; 
but let it be taken on a larger calcula- 
tion and fay, that the whole number of 
fuits, in which the citizens of Maryland 
r.re immediately concerned, amount to 
four hundred in each yea'- ; for which 
we pay nine thoufand dollars ; it fol- 
lows that each fuit cods rather more 
than twenty two dollars, or better than 
five times as much as each fuit brought 
in the date court of Maryland. Thus 
in lie ad of ftate juftice coding five times 
more than federal judice ; in reality 
federal judice cods five times more than 
date juitice. If a calculation is made of 
all the bufinefs tranfactedin all the courts 
of Maryland, from the higheftto the low- 
ed, I believe it will be found that the 
ratio will be the fame. 

The document from which we have 
acquired our information, as to the num- 
ber of fuits which have been inftituted 
and are now depending in the circuit 
courts, has been feverely commented 
on. A gentleman from Connecticut, 
(Mr. Grifwold) fays, it is incorrect be- 
caufe it does not exhibit the names of 
the (tutor's, and declares the Preddent 
had no right to procure it. Thefe arc 
objections to be lure of a mod import- 
ant nature. Objections which are made 



[ 21 ] 



for the purpofe of inducing ws to reject 
the teftimony it affords. Let me afk 
the honorable member, where was the 
neceffity for {hewing us the names of 
the fuitors ? Truly, fays the gentleman, 
for the purpofe of fhewing the clafs of 
citizens from which the Prefident had 
lately made fome appointments in Con- 
necticut. And I would again aik, what 
thefe appointments have to do with the 
quefti.«n now before us ? Suppofe the 
fact had appeared as the gentleman infi* 
miates, that all thofe people who have 
lately received appointments in Connec- 
ticut, were defendants on the docket of 
the circuit court in that ftate, would it 
have proved the necefiity of keeping up 
the fyftem ? — Sir, the objection is an 
abfurd one. If it could prove any thing, 
it would be that the Prefident had giv- 
en appointments to poor men, and God 
forbid that there fhould be any thing 
criminal in this. But ' the Prefident 
had no right to obtain this information 
ior the purpofe of laying it before con- 
grefs.' Is it not his conftitutional 
right ? Nay, is it not his conftitutional 
duty to give fuch information to con- 
grefs relative to the affairs of the union 
as in his judgment will throw ligkt on 
fubjects likely to attract their atten- 
tion ? Is he not the conftitutional or- 
gan through which we are to acquire 
information ? Is it not declared by the 
conltitution, c that the Prefident fhaH 
from time to time, give us information 
on the ftate of the Union, and recom- 
mend to our conftderation fuch mea- 
sures as he (hall deem nectffary or ex- 
pedient?' And yet when he exercifes 
this conftitutional privilege, when he 
performs this conftitutional duty, thefe 
gentlemen, whofe tender confciences 
are upon fome occafions fo alive to the 
conftitution, think proper to reproach 
him for it. Nay the gentleman from 
Del-aware has vauntingly declared, that 
for the performance of this conftitutio- 
nal duty he * holds him responsible. 
For this he trufts he will be brought to 
account, and that the day will come, 
when we fhall hear the honorable mem- 
ber and his friends fpeaking more effec- 



tually on the fubjecV What idle de- 
clamation, what empty founds are thefe I 
Yes, fir ; he is rcfponfible ; and not to 
the gentleman from Delaware more 
than to the meaneft man in the commu- 
nity ; he is refponfible to the American 
people. He is refponfible to the great 
body of the nation whofe voices have 
done juftice to his virtues ; and on this 
refponiibility he chearfully refts himfelf 
and all his actions. The day ef account 
will come ; the day on which the people 
of this country will again have to de- 
termine whether he merits their confi- 
dence, or not ; and when this day fhall 
arrive, if his conduct will not fUnd the 
teft of free and impartial enquiry, I trufl 
he will be dilmifted, as thofe have been, 
who have gone before him. But if he 
fhall be found to have been faithful in 
the difcharge of his duty, he will receive 
the moft gratefwl reward that can be be- 
ftowed on a public fervant, the appro- 
bation of his country. 

This appeal too is called a meafure of 
the President's, and the gentlemen from 
Delaware has faid, it is in the power of 
the Prefident now to arreft its progrefs. 
What is meant by this ? What is the 
dark infinuation covered under this lan- 
guage ? Does any man within thefe wall? 
dare to inhnuate that I am under exe- 
cutive influence ? Does any man af- 
fert that I am governed by any o- 
ther motive than my own fenie of 
right, and my own opinion of the con- 
ftitution ? If he does, my anfwer is rea- 
dy for him. Let gentlemen fpeak out ; 
let them leave nothing to be gutffed 
at, and we fhall know on what ground 
to meet them. Language that can fee 
made to mean any thing or nothing, 
fhould not be ufed on this floor, and hard- 
ly merits notice. 

There is one other remark of the gen- 
tleman in which he has been more ex- 
plicit and which I fhall beg leave to no- 
tice. He tells us if we pafs this law, 
the judges will declare it unconftitutio- 
nal, and he knows many enlightened 
citizens who are prepared to fupport the 
judges by force. From other quarters 
we have been told, that the bayonet umft 



[ 22 ] 



rule, if the law doe,s not; that is, what 
thefe gentlemen in their profound wif- 
doin think prt-.per to call < the law.' — 
This is a ftrange language to be ul'ed by 
men who profefs to be the exclusive 
friends of order and good government, 
and who promiied to meet us, robed in 
the mild garb of chriftian meeknefs. 
But is it imagined that thefe threats are 
to drive us from our purpofe ? The gen- 
tleman ' experts not to appal the llout 
hearts of his adverfaries,' but afks if 
we will not regard our wives and chil- 
dren.' Sir, when he defpaired of alarm- 
ing us, did he mean to conjure up a 
raw head and bloody bones to terrify the 
women and children ? Even if he fhould 
produce the effedt, it would be a paltry 
triumph. Yes, fir, we will regard them ; 
and we can fhew that regard in no way 
more effectually than by protecting the 
conftitution from its enemies. If there- 
fore there are men among us who are 
refolved to deftroy this union, which has 
been cemented by the beft blood of the 
nation ; if they will burft ai under thwfe 
bonds of brotherhood and affe&ion, by 
which we have beam heretofore united ; 
I now warn them that we fhall not tame- 
ly fubnait to it. We have lived with 
them as brethren, and fh uld reluctantly 
meet them as enemies ; but we will not 
be terrified by the cloud of bayonets with 
which they have threatened to over- 
whelm us. The arm of the Union has 
already fuppreffed one infurreclion, I 
it will prove ftrong enough to chaftife 
rebellion. Punifhment is due to trai- 
tors, and I flatter myfelf the govern- 
ment will be able to inflift it. But if, 
unfortunately, I fhould be miftaken— 
if its powers fhould be too feeble to re- 
fill: fwperior numbers, deluded by the ar- 
tifice ©f ambitious men, andenlifted un- 
der the banners of an afpiring faction, 
let them this day be informed, that they 
will find us no eafy prey. Let this 
threatened florm approach when it may, 
if we cannot check itsprogrefs, we will 
rally round the conftitution and periftl in 
its ruins. For myfelf, I have termed no 
hope beyond the exigence of this confti- 
tution. 



The gentleman from Delaware has, 
charitably cautioned us again!* the ex- 
ercife of the repealing power which we 
now contend for. His chanty leads 
him to believe that our fole objec\ is not 
the removal of the judges ; but he in- 
treats us to remember that other men may 
follow us, who may confidcr this as a 
precedent, and will repeal a law merely 
for the purpofe of difmiffing judges, a- ( 
gainfl whom an antipathy may be felt, 
as he fays was lately done in the (late of 
Maryland. Whether the Iegiflature of 
that ftate had a conftitutional right to 
repeal the lav/, it is not now necefTary 
to enquire ; becaufe by fettling the prin- 
ciple of congreffional right in the 
prefent cafe, we fettle the principle of 
legiflative right in Maryland. But I 
fhall undertake to fay that the law of 
Maryland ftood upon a very different 
bafis from that now under confedera- 
tion. The law of Maryland appointing 
judges, was a temporary one ; that of 
Gongrefs is permanent. Prior to the^ 
year 1789, the county courts of Mary- 
land were held by juftices Oi" the peace, 
in the annual appointment of the gover- 
nor and council ; but in the year 1789 
a law pa|Ted new organizing the courts ' 
by declaring that they .hould be filled 
by judges holding their commifiions dur- 
ing good behavior. This law was to 
continue in force for three years only. 
At the expiration of this time, the law 
was again continued for three years 
more. In 1796 it was further continu- 
ed for three years, and in 1799 had its 
duration extended, I believe, for three 
or four years longer. N»w at the expi- 
ration of any one of thole periods, it 
was completely and undeniably in the 
power of the legislature to fuffer the law 
to die a natural death. There was no 
power on earth competent to the t&fk of 
compelling the Iegillature to renew it. 
This left the judges entirely dependent 
on the will of the legiflature at the end 
of every three years ; or in other words 
they were to hold their offices fo long as 
thole offices were in exiftence, and the 
com million of the judge as well as the 
exiftence of the office depended on the 



[ 23 ] 



will of the legislative body. From thefe 
confiderations, it may, perhaps, 
be fairly inferred that the right 
; of repeal in Maryland was lefs doubtful 
than the ri^ht which we now contend 
for. I muft alio be permitted to obferve 
that although there might have been 




can decide upon the intention from the 
effect. Independent of fome valuable 
provifions which were introduced, and 
which the people of the ft ate have long 
been contending for, (1 mean a limita- 
tion of the jurifdiction of the general 
court) the removals that have taken 
plav,e have not been directed at the poli- 
tical opinions of the men. The ftate is 
divided into five diftricts, in each of 
which there is a chief or prefiding judge. 
Of thefe five, four were, what is called, 
Federal and one Democratic in his poli- 
tics. Two of theie federal judges have 
been continued in office by a grant of 
new commiffions to them, two federal 
'have been dilplaced, and the only demo- 
cratic judge among them has been dif- 
placed alio ; although the law was repeal- 
ed by a democratic legiflature, and the 
removal made by a democratic executive. 
I fhall however take the liberty of fay- 
ing, that if the right to repeal is not re- 
pugnant to the conftitution, in my opin- 
ion eaufes may exiit which would excufe 
the legifl: ture in repealing a law, barely 
for the parpofe of removing a judge, as 
it will readily be conceived, there may 
be many objections to a man which would 
render him unfit to be a judge, although 
they might not come within the techni- 
cal meaning of the word misbehaviour. 
Thefe objections I will not detail, left 
it might be invidioufly fuppofed, I in- 
tended *o point them at thole gentlemen 
who have lately been removed from of- 
fice in Maryland. 

I will now folicit the indulgence of 
the committee while I direct my oofer- 
vations to the conftitutionality of the 
bill on the table. The objections which 
have been railed on this ground, al- 
though urged with much force, have 



been uniform in their nature, and infill- 
ed on by every gentleman who has fpo- 
ken in oppofition to the repeal. I fhall 
moft readily admit that our government 
is organized differently from any other 
in the known world. Moft writer* on 
government have confidered the judicia^ 
power to be a branch of the executive, 
although its adminiftration was entrufted 
to other hands. This is certainly the 
opinion of judge Blackstone, who declares 
the nation c« be the fountain of jultices 
and the king the refervoir, from which 
it is to be diftributed through fuch va- 
riety of channels as he may think pro- 
per. fVoideson in his lectures feems to 
think differently, becaufe he fpeaks of 
the judicial, as a branch totally diftinct 
from the executive power. But De- 
lolme agrees with Blackftone, and I ra- 
ther fuppofe this to be the correct opini- 
on as it relates toEnglend ; for it rauft 
be admitted that the king has the power 
of erecting courts at pleafure by letters 
patent, and to appoint the judges ; and 
although parliament may have a right 
to erect courts likewife, yet the confent 
of the king is here imoliedly given. In 
this fenfe the Prefident, the fen ate, and 
the houfe of representatives in their le- 
giflative capacity ; and the Prefident and 
fenate, in their executive capacity, may 
likewife be confidered the refervoir of 
juttice, as the former have the power of 
erecting courts at pleafure, and the lat- 
ter have the right of appointing the 
judges. I do not know, however, 
that it is material to contend 
about the diitribution of powers : 
it is certain that by our conftitution 
Executive and legislative powers are 
often blended in the fame perfons, and 
in fome inftances powers ufually execu- 
tive are conftituted totally legiilative ; 
as the power of declaring war, kc. We 
are not therefore to refort to the opin- 
ions of writers on this fubject, but are 
to look to the initrument itfelf which 
we are bound to fupport, as well by the 
folemn obligation of an oath, as our du- 
ty as men, and a regard to ear own 
welfare and happinefs as citizens. 

One ground which gentlemen have 



[ 24 ] 



taken, and which they feem to rely on 
■with much confidence, is, that the infe- 
rior courts were eftablifhed by the con- 
stitution ; that they grew out of the con- 
ititution as neceiFarily as the fupreme 
court, and therefore can only be put 
down by means of a change in the ccn- 
ftitution. I do not know that I ufe the 
precife language, but this was certainly 
the idea meant to be conveyed by the 
gentleman from Pennfylvania on my 
right (Mr. Hemphill) and by feveral o- 
thers. To this point therefore I will 
direct fome few remarks. 

The 1ft fection of the 3d article of the 
conltitution declares, that " the judicial 
power of the United States fhall be veft- 
ed in one fupreme court, and such inferi- 
or courts as Congrefs may from time to 
time ordain and eltablilh." Every word 
of this fection has derived an importance 
from the courfe which the prefent dif- 
enfiiou has taken, and every word has 
been commented on over and over again. 
I will readily agree with the gentleman 
from Connecticut, that this claufe gives 
no powers to Congrefs, and I fhall 
hereafter contend that the pou ers of con- 
grefs arc by no means reftricted by it. 
The whole article is confuined in defin- 
ing the extent to which the judicial pow- 
er fhall run, and in declaring by what 
iiiltitutions that power fhall be exercifed. 
The authority toeftablifh inferior courts 
islgiven by the 8th lection of the 1ft arti- 
cle, and the power of organizing the fu- 
preme court is given by the laft claufe of 
the fame fection, authorising Congrefs to 
pafs all laws neceffary for carrying into 
effect the powers veiled by the conftitu- 
tion in the government of the United 
States. It has, notwithstanding been 
contended that the 1 ft fection of the third 
article which I have juft read, operated 
imperatively upon Congrefs, and that 
they were thereby obliged to eftablifn 
not only a fupreme, but likswife inferior 
-courts. I (hall admit that before the go- 
vernment of the United States could 
exercile higher judicial powers, it became 
neceffary to organize the fupreme court ; 
but I contend that when this court was 
•nee organized, the conltitution was 



gratified. Cotemporaneous expofrtien 
has been ref rted to, to lapport doctrines 
advanced by our adverfaries, and I fhall 
beg leave to refort to fimilar affiftance, 
to fhew that this was the opinion of one 
of the wifeft and able'ft men our country 
can boaft of. The venerable and highly 
refpected judge Pendleton, a Itrenuous 
and learwed advocate of the conftkution. 
in debating this article in th* convention 
of Virginia, thus expreffes hjrii 
" The fir ft claufe contains an arrange- 
ment of the courts, one fupreme, and 
fuch inferior as Congrefs may ordain 
and eftablifh. This feems to me to be 
proper ; Congrefs mull be the judges, 
and may find reafons to change and vary 
them as experience fhall dictate. It isi 
therefore not only improper, but exceed- 
ingly inconvenient, to fix the arrange- 
ment in the conftitutiori ltfelf, and not 
to leave it to laws, which may be chang- 
ed according to circumftances. I think 
it highly probable that this firft experi- 
ment will be to appoint the state courts 
to have the inferior federal jurisdiction ; 
becaufe it would be belt calculated to 
give general fatisfaction and anfwer eco- 
nomical purpofes, fince a fmall addition* 
al falary may in that cafe fuffice in« 
ftead of a competent provifion for the 
judges. But even this eligible mode ex- 
perience may furnifh powerful reafons for 
changing, and a power to make fuch 
change ought to reft with Congrefs. 
It will be found that through the whole 
of that debate, this idea was not com- 
bated, and it clearly proves that no «ne 
confidered the courts eftablifhed by the 
conltitution, or that the fection was im- 
perative. I might follow the example 
of my opponents, and reft contented with 
offering the opinions of that day, as a 
reafon why my own opinions, at this time 
are correct ; but I will endeavour to fhew 
that this idea of judge Pendleton's was 
entertained by Congrefs after the govern- 
ment was adopted. It is clear, from the 
extract I have juft read, that the friends 
of the conftitution thought it would bei 
gratified in this particular by organizing 
a fupreme court, and by giving federal 
jurifdi&ion to the Rate courts ; and it| 



C 25 ] 



cannot be doubted that the do&rine was 
found, if the conftitutionality of the law 
eftablifhing the judicial courts, in the 
year 1789 is admitted. For by that law 
it is provided, " that the circuit courts 
fhall have' original cognizance, concur- 
rent with the courts of the feveral ftates 
of all fuits at common law or in equity, 
where the matter in difpute exceeds the 
fum or value of five hundred dollars, and 
the United States are plaintiffs or peti- 
tioners, or an alien is a party, or the 
iuit is between a citizen of the State 

'■where the fuit is brought, and a citizen 
of another ftate." By this claufe the 
federal court is veiled with a cognizance 
concurrent with the ftate courts over 
cafes of federal juvifdiction ; by which 
the jurifdiction of the ftate courts is un- 
impaired ; and it is admitted that they 
may hold equal cognizance with the fe- 
deral courts, where the fum amounts to 
five hundred dollars. But in all cafes at 
common law or in equity, where the fum 
or value in difpute is under five hundred 

' dollars, the original cognizance is left 
exclusively with the ftate courts. Now, 
fir, it cannot be denied if the ftate courts 
wer^ competent to hold exclusive jurif- 
d.&ion over fums not amounting to five 
hundred dollars, they would have been 
equally competent to hold junfdiction 
over fums to any amount whatever. — 
Their concurrent jurifdiction is admitted, 
their exclusive jurifdiction might have 

'been left to them. In like manner the 
ftate courts might have been permitted 
to hold cognizance of admiralty and ma- 
ritime cafes ; for I believe all the ftates 
had courts exercifing- this kind of junf- 
diction. I do not contend that this 
would have been proper, but only wiih 
to fliew that it might have been done, and 
that there was no confthutional neceiiity 
for eftablifhing inferior courts. It baa 
too been argued, not I believe in this 
houfe, but in another where the fubject 
has undergone difcuflion, that the ne- 
ceffity for inferior courts arofe from the 
conltitution having declared that the fu. 
preme court fhould have appellate juris- 
diction ; and that there can be no ap- 
peal unlefs there were inferior courts 



from which an appeal might lie: This ob- 
jection difcovers wonderful fagacity in- 
deed, for I -pre fume it could not be con- 
ceived that an appeal might lie from, as 
well as a writ of error be directed to, a 
ftate court, as I believe is already provid- 
ed for by the act of 1789, in certain 
cafes. 

Thefe remarks have been made with 
a view to (hew that the language of the 
firft fection of the third article is not im- 
perative, but that Congrefs might have 
gratified the conltitution by organizing 
the fupreme court alone. If their discre- 
tion was to be exercifed as to the time 
when thefe inferior courts fhould be efta- 
bliihed, I think it may likewife be proved 
that the number was to depend upon 
their difcretion alfo. The gentleman 
from Connecticut admits that the num- 
ber may be increafed from one to a thou- 
fand, but he denies that the number can 
ever be diminiftied. Thus, it is in the pow- 
er of one Congrefs to encreafe the evil to 
any extent, but it is impoflible for any 
future Congrefs to correct the errors or 
repair the inilchief of their predeceffors. 
This is a hateful doctrine in a free coun- 
try, and I hope can be fhewn to be un- 
found. The language of the conftitu- 
tion is, " such inferior courts as Con- 
grefs may from time to time ordain and 
eftablifh." By the word " such" I un- 
derftand fo many both in kinds and num- 
bers as Congrefs may, in their judgment, 
from time to time, and according to cir- 
cumftances, think necefTary. This in- 
volves the right of modifying the various 
kinds of courts, and increafmg or di- 
minifhing the number at pleafure. The 
conftitution does not fix the number of 
coui ts, but leaves Congrefs to determine. 
It is admitted on all hands that the 
authority to erect thefe courts is not 
derived from this article, but from the 
8th lection of the firft article, in which 
it is declared that Congrefs " (hall have 
power to conftitute tribunals inferior to 
the fupreme court." The fame article 
likewife declares that Congrefs " (hall 
have poweJ^.to lay and collect taxes 
and to eftablifli poft-offices and paft- 
roads." Now the right to reduce 
D 



I 26 ] 



the number of taxes, or the number of 
poft-olHces and poll-roads is not denied, 
an«l where, I afk, is the right to reduce 
the number of inferior tribunals denied ? 
The authority to eftablifh each is vetted 
by the fame article and is couched in the 
fame language. We are in the conftant 
habit of diminifhing the number of poft- 
rcads £c poft-offices without hearing any 
objections, and I hope ere long we fhall 
acquire a habit of difcontinuing taxes. 
Oar conftitutional right to do this, I 
prefume, will not be denied, however 
gentlemen may think proper to objec\ 
on other grounds. There is no part of 
this fedtion imperative ; it vefts Con- 
grefs with a difcretionary power to lay 
and collect taxes ; to borrow or coin 
money ; to ellablifh pott-offices and pod- 
roads ; to conftitute tribunals inferior to 
the Supreme Court ; to raife armies and 
to equip a navy ; but we find no reftric- 
tionupon the power of Congrefs to re- 
duce all thefe eftablifhments whenever in 
their opinion they may become ufelefs, 
or circumftances may arife to juftify the 
reduction. I think this opinion muft be 
nniverfally concurred in as far as it re- 
fpedts any one of thofe objects ; and it 
muft be admitted that we have the pow- 
er to reduce as well as to eltabliiTi unlefs 
fomje redaction can be fsund in other 
parts of the conftitution. This inftru- 
ment has been fcrutinized with an eagle's 
eye, ever fines th> queftion now 'under 
consideration has been raifed, and no 
express reftriction, check or limitation 
of the repealing power of Congrefs has 
been pointed out, becaufe none can be 
found. 

I have fearched for this prohibition, 
but have been unable to difcover it. 
Where the conftitution means to reftridt, 
it is clear, explicit and unequivocal. By 
refe'rrtng/tQ the ninth fccVion of the fir (t 
article you will find the limitations of 
the p6wers of congrefs are defined with 
tiie raoft accurate precifton. The tenth 
ll-ctiou, in terms equally definite, re- 
ftridt s the authority of the ftates. Yet 
among thefe you will find no redaction 
firriilar to that now contended for. 

But gentlemen have reforted to ano- 



ther part of the conftitution, which they 
fay contains the reftriction ; not indeed 
in exprefs terms, but by implication. 
Sir, this doctrine of implication is a dan- 
gerous one. A departure from the letter 
in order to purfue the spirit, may lead 
to incalculable mifchief, and muft ulti- 
mately deftroy the conftitution itfelf. 
It leaves it to the difcretion of every 
fucceeding congrefs to give to the con- 
ftitution any meaning whatfoever, that 
their whim or eaprice may fuggeft ; to 
aftume to themielves, and to attach to 
the other branches, powers never intend- 
ed to be delegated. We fay that we 
have the fame right to repeal the law ef- 
tablifhing inferior courts, that we have 
to repeal a. law eftablifhing port-offices, 
and pod-road?, laying taxes, or railing 
armies. This light would not be denied 
but for the conftrudtion given to that 
part of the conftitution which declares 
that " the judges both of the fupreme 
and inferior courts fhall hold their offices 
during good behaviour*" The argu- 
ments of gentlemen generally have been 
directed againft a poiition that we never 
meant to contend for: againft the right 
to remove the judges in any other man- 
ner than by impeachment. This right 
we have never in fifted on; we have ne- 
ver in the moft diftant manner contend- 
ed that the conftitution vefted us with 
the fame power, that the parliament of 
England have ; or that is given to the 
legifiatures of Pennfylvania, Delaware, 
Jerfey, and fome others. Our doctrine 
is that every congrefs has the right to 
repeal any law paffed by its predectffors, 
except in cafes where the conftitution 
impofes a prohibition. We have been 
told that we cannot repeal a law fixing 
the Prefident's falary, during the period 
for which he was elected. This is ad- 
mitted, becaufe it is fo expressly declar- 
ed in the conftitution ; nor is the necef- 
fity fo imperious, becaufe at the expira- 
tion of every four years, it is in the 
power of congrefs to regulate it anew, 
as their judgments may dictate. Nei- 
ther can we diminifh the falary of a 
judge so long as he continues in office^ 
becaufe in this particular the conftituti- 



[ 27 ] 



•n is exprefs likewife ; but we do con- 
tend that we have an abfolute uncon- 
trolled right to abolifh all offices, which 
have been created by congress , when in 
our judgments thofe offices are unnecef- 
fary, and are productive of a ufelefs ex- 
pence. 

Let us examine the objections which 
har/e been raifed to this, upon that part 
of the conftitution in which it is faid 
that " the judges both of the fupreme 
and inferior courts fhall hold their of- 
fices during good behaviour, and fhall 
receive at flated times a compenfation 
for their fervices, which fhall not be di- 
minifhed during their continuance in of- 
fice." It has already been ftated by 
fome of my friends, and I fhall not 
therefore dwell upon it, that the prohi- 
bition contained in thefe words, was of 
two kinds ; the one applying to the le- 
giflature and prohibiting a diminution 
of falary; the other applying to the ex- 
ecutive and forbidding a removal from 
office. The firft prohibition our adver- 
faries readily admit, but the fecond they 
fay applies as well to the legislature as 
to the executive. I lhouid agree to this 
too, were there any neceffity for it, but 
it is not pretended by us that we have 
the right to remove from office any offi- 
cer whatfoever, not only a judge, but 
even a revenue officer ; there would, 
therefore, be no neceffity for impoling a 
reftriction upon congrefs in relation to 
a judge any more than in relation to an 
officer concerned in the collection of the 
revenue. They are each appointed by 
the Prefident and fenate, but the execu- 
tive officer holds his place at the will of 
the Prefident, the judge holds his office 
during good behaviour, and neither i'ub- 
ject to removal by the legiilature. The 
term good behaviour is faid to fecure to 
the judge an estate for life in his office, 
determinable only upon impeachment, 
for, and conviction of bribery, corrup- 
tion and other high crimes and mifde- 
meanors, and that inafmuch as his good 
conduct is the tenure by which he holds 
his office, he cannot be depiivedof it, 
fo long as he demeans himfelf well. As 
our fyftem of jurifprudence has been bor- 



rowed from Great-Britain, it may not 
be amifs to reler to the hi (lory of that 
nation, in order to difcover whether 
they have given the fame conflruction 
to thefe words, as is now contended for 
by gentlemen on the other fide of the 
houfe. It is certain that in England, it 
has in so me cases been conlideredthat 
the words good behaviour in a eommif- 
fion, confer the office for the life of the 
officer, provided he fhall fo long demean 
himfelf well ; but 1 do not know that a 
queftion has ever arifen there, how far 
the power creating the office could 
afterwards abolifh it. It appears to me 
to follow fo neceffarily, that form\felf 
I fhould never have darted a doubt ; it 
is however mod clear, that thefe words 
have not even in England been thought 
to give the judges an eftate for life in 
their offices. Antecedent to the accef- 
fion ot William the III. all judges 
were appointed by and held their com- 
miffions during the pleafure of the king ; 
but in the reign of that monarch it was 
declared by the act of fettlement, that 
judges after that time fhould hold their 
commifiions during gocd behaviour, re- 
movable upon the addrefs ofboth houfes 
of parliament. The tenure of office 
then became precifely iimilar to that of 
our judges at this time, with the fingle 
exception that it was in the power of 
parliament to remove them ; they were 
to hold their offices fo long as they de- 
meaned themfelves well, and could fe- 
cure the good will of the legiilature. 
Yet this was not con fidered there as an 
estate for life, becaufe it is well known 
tha'. their appointments became vacant 
upon the demife of the crown, and their 
commiffions were no longer in force. It 
was the fettled opinion and uniform 
practice for lixty years. The judges ne- 
ver ventured to maintain a contrary doc- 
trine, but acquiefced in it from the reign 
of William the III. to that of George 
the III. It was not only the practice, 
but it was recognized by the acts of fe- 
veral fucceeding parliaments. For in 
the firft year of the reign of queen Anne, 
an act of parliament paffed, decla- 
ring that the judges fhould hold 



[ 



28 



J 



their commiflions fix months after the 
demife of the crown. Here it was de- 
cidedly the opinion of parliament, that 
the judge did not hold his office during 
life, becaufe it was admitted that the 
commiflion was properly annulled by the 
demife ot the crown, anal they declared 
that in future it Ihould continue m 
force for fix months after. This prac- 
tice of vacating the commiflions of tke 
judges for fix months after the demife 
of the crown, was regularly purfued up- 
on the death of Queen Anne, of George 
the 1ft and George the 2d, without any 
doubt being entertained as to its proprie- 
ty. In the reign of George the 3d par- 
liament again acknowledged it to have 
been the fettled and eftablilhed law of 
the realm, by enacting a particular fta- 
tute to change it, in which they declar- 
ed, that the commiflions of the judges 
mould not determine upon the demife of 
the crown, and fo the law Hands at this 
day. I have given this as an example 
to fhew that in England the words, 
good behaviour, did not invert the judg- 
es with an eltate for life in their offices ; 
but that notwithstanding thefe words in 
their commiflion, in conformity to an 
act of parliament, they were ftill left 
fubject to the eftablilhed principle of the 
common law, that the commiilions of all 
officers in the appointment of the crown 
were vacated by the death of the reigning 
monarch. It is a maxim univerfally ad- 
mitted, that the common law may be 
repealed by ftatute, but it was not con- 
fidered in England, that a fundamental 
principle could be repealed in an inciden- 
tal manner, by declaring, that the com- 
miflions of the judges mould continue 
during good behaviour. It is a funda- 
mental principle in every government, 
that the power having the right to en- 
act has hkewife the right to repeal a 
law. It is the exillence of this funda- 
mental principle in our government, 
which gives to congrefs the right of re- 
pealing their own laws ; for the power 
to repeal is no where exprefsly veiled in 
them by the conftitution, and it would 
be abfurd co fuppofe, that when a law 
is once enacted, it is to continue for e- 



ver in force. The act of fettlement is^ 
as much a part of the conftitution of 
England, as the third article is a part . 
of our conftitution ; yet the provifion 
in this act which declares, that the judg- 
es ihould hold their commiflions during 
good behaviour, was never confidered as 
deftroying that fundamental principle of 
their government, by which all commif- 
lions were vacated upon the demife of 
the crown. So in our own country, al- 
though the third article of the conftitu- 
tion declares, that the judges of the in- 
ferior ccui ts (hall hold their commiilions 
during good behaviour, yet it cannot 
operate to deftroy the fundamental 
principle of our government, by which 
congrefs are authorifed to repeal all laws 
they have enacted and to abolilh all of- 
fices they have created. An express 
ftatutory provifion was deemed neceffa- 
ry in England to prevent the commif- 
lions ot the judges from being vacated 
by the demife of the crown, and was ac- 
cordingly made in the reign of George 
the 3d. An express constitutional provi- 
fion muft be made before congrefs can 
be diverted of the right of repealing a 
law which they have enacted. Until 
our conftitution is amended to this ef- 
fect, which I hope never to fee done, 
the right to repeal a law conftituting 
an inferior court, can no more be deni- 
ed than the right to repeal a law efta- 
blilhing a poft-road, laying a tax, or 
railing an army. 

Having {liewn that in England the 
tenure by which the judge held his office, 
was not, of itfelf, deemed fufficient to 
deftroy a great and leading principle of 
their government, I will now endeavor 
to prove that the tenure of office cannot 
and ought not to produce this effect in 
the United States. I will not difpute 
with the gentleman from Connecticut 
(Mr. Grifwcld) about the meaning of 
the word hold, becaufe it equally an- 
fwers my purpoie to fay, that tke judge 
fliall possess his office during good be- 
haviour. I cannot however agree with 
him, that the judge holds his office of the 
people, for he is not appointed by them 5 
beiides if he is to hold his office during 



[ 



29 



3 



good behaviour, of the people, a doubt 
perhaps might arife, whether under 
thete circumftances, even a change of 
the conftitution could affect him. It is 
true he is not called the Prefident's 
judge ; neither is a minifter to a fo- 
reign court ca!Ld the Prefident's ambaf- 
fador, but the ambaflador of the United 
States ; yet it will not be contended, 
that the ambaffador hoeds his place of 
the people. 

It is neceffary to examine whether the 
tenure by which any officer of the Unit- 
ed States holds, or if gentlemen pleafe, 
possesses his office, can deftroy the inhe- 
rent right of congrefs to repeal the law 
by which the office is created. In or- 
der to do this, it may be proper to reier 
to an early period of the political hiftory 
of the prefent government. In the year 
1789, foon after the government was 
organifed, when congrefs were about to 
eftablifh the office of fecretary of foreign 
affairs, iince called fecretary of ftate, a 
queftion arofe, whether the officer was 
to be removed at pleaiure by the Prefi- 
dent ; whether by the Prefident and fe- 
nate who appointed him ; or whether 
he was to hold his place during good be- 
haviour, Thefe different eonftru&ions 
of the conftitution were contended for 
by three different claffes of gentlemen, 
who feverally urged, that each was the 
true meaning of the conftitution. A 
gentleman of diftinguifhed talents at 
that time reprefenting South Carolina, 
Mr. William Smith, advocated with ve- 
ry great ability, the opinion, that the 
conftitution had pointed out but one me- 
thod of removing an officer (by impeach- 
ment) and therefore, that he could not 
6e removed fo long as he demeaned him- 
felf well. Finally however, a majority 
agreed, that the true meaning of the 
conftitution was, that the power of re- 
moval was of an executive nature, and 
therefore belonged folely to the Prefi- 
dent. 1 his conftruftion was adopted & 
has ever lince been faa&iened by uni- 
form practice. But I will fuppofe that 
Mr. Smith's conftrucYion had been agreed 
to, and iv muft be allowed to be extreme- 
ly plaufible, would congrefs thereby have 



been prevented from repealing a law by 
which an executive office had been creat- 
ed, becaufe the officer could only be re- 
moved by impeachment ? I prefume no 
gentleman will fay fo. But let us take 
the cafe as it now ftands. Your fuper- 
vifors who fuperintend the collection of 
your excife duties are appointed by the 
Prefident and fenate, and hold their of- 
fices under the conftitution, not during 
good behaviour, but during the will and 
pleasure of the President. The tenure 
by which he holds his office, is complete- 
ly beyond the power of the legiflature, 
and they cannot remove him. So long 
as he can fecure the good will of the 
Prefident, he is to hold his office againft 
the whole world. It is as facred in rela- 
tion c© the authority of congrefs, as that 
of a judge. They both hold their offi- 
ces independent of the legiflature, the 
one during good behaviour, the other 
during the pleafure of the l redden t. It 
is not in our power to remove an excife 
officer, fo long as his office continues, a- 
ny more than to remove a judge, fo long 
as his offiee continues. The authority 
vefted in us is entirely legiflative, and 
has nothing to do with the executive 
power of removal. Yet, is there any 
man on earth can fay that we have not a 
conftitutional right to repeal the laws 
laying excife duties, by which the office 
ot fupervifor is created ? And can any 
one fay that we can remove the fupervi- 
for in any other manner than by repeal- 
ing the law ? We do not contend for the 
right to remove the Judge any more 
than for the right to remove the fuper- 
vifor, neither of which we can do, each 
holding his office independent of us ; but 
we alledge that the tenure by which ei- 
ther holds his office cannot prohibit us 
frcm repealing a law by which the office 
is created : It is the tenure of office 
which is now urged againft the repeal- 
ing power of Congrefs : this tenure is 
completely independent of legislative 
will, and therefore we are told we can- 
not pafs a law to affect it. I have, how- 
ever fiiewn, that the tenure by which 
the fupervifor holds his office, is as com- 
pletely independent of legiHative will, 



C 30 ] 



Hs that by which a judge holds his of- 
fice, yet no man will be hardy enough 
to difpute the conftitutional right of 
Congrel's to repeal the excife laws, and 
thereby to difmifs all the perlbns holding 
offices under them. 1 am aware that I 
may be told, that the President in giv- 
ing his fanction to the law, at the fame 
time impliedly fignifies his confent to 
the removal of the officer. But permit 
me to suppofe that the President refufes 
his fignatuie to the law, and tells you 
that thefe officers hold their commis- 
fiofls independent of you, and therefore 
you have no right to difmifs them ; that 
the C mftitution authorizes them to 
hold their places during his will and plea- 
fure, and that it is his will and pleafure 
they fhall continue in office. Here the 
tenure is as ftrong and inviolable by the 
legiflative power, as the tenure of the 
judge ; yet Congrefs may, notwithstand- 
ing, afterwards pal's the law by the con- 
currence of two thirds, and deflroy this 
iacred tenure of office. 

If then the tenure of office in the one 
cafe, cannot deftroy the right to repeal, 
why (hall it deftroy it in the other ? Both 
tenures are equally independent of le- 
giflative contioul, the one fecuring an 
eltate deftafible by mifb-. haviour, the o- 
ther fecuring an eftate defeasible by the 
will of the FreHdent ; but neither de- 
pendent on Congrefs for continuance in 
office, fo long as the office it ft- If exifts. — 
Gentlemen fay we cannot do that by in- 
direct means, which we cannot do direct- 
ly ; that is that we cannot remove a 
judge by repealing this law, inafimich as 
we cannot remove him by direct means ; 
but I have proved beyond the poffibility 
of doubt that we may indirectly remove 
jtcife officer by repealing the law un- 
der which he was appointed, although we 
have no authority to remove him in any 
direct manner. It the principle laid 
down by Gentlemen is not true in the one 
cafe, it cannot be true in the other. 

For my own part, Mr. Chairman, I 
think no dr.ubt can be entertained that 
the power of repealing, as we 11 as of e- 
nacting laws, is inherent in every legis- 
lature. The legiflative authority would 



be incomplete without it. If you deny 
theexiftence of this power, you fuppofc 
a perfection in man, which he can never 
attain. You fhut the door againft a re- 
traction of error, by refufing him the be- 
nefit of reflection and experience. You 
deny t* the great body ot the people all 
the effential advantages for which they 
entered into fociety. This houfe is com- 
pofed of members coming from every 
quarter of the Union, fuppofed to bring 
with them the feelings, and to be ac- 
quainted with the interefts of their con- 
itituents. If the feelings and the inter- 
efts of the nation require that new laws 
fhould be enacted, that exifting laws 
fhouldbe modified, or that ufelefs and 
unnecef-farylaws fhouldbe repealed, they 
have referved this power to themfelves 
by declaring that it fhould be exercifed 
by perfons freely chofen for a limited pe- 
riod, to reprefent them in the national 
legiflature. On what ground is it denied to 
them in the prefent inftance ? By what 
authority are the judges to be raifed a- 
bove the law and above the Constitution ? 
Where is the charter which places the 
fovereign y of this country in their 
hands ? Give them the powers and the 
independence now contended for, and 
they will require nothing more ; for your 
government becomes a defpotifm, and 
they become your rulers. They are to 
decide upon the lives, the liberties and 
the property of your citizens ; they have 
an abfolute veto upon your laws by de- 
claring them null & void at pleafure ; they 
are to introduce at will the laws of a 
foreign country, differing effentially with 
us upon the great principles of govern- 
ment ; and after being cloathed with 
this arbitrary power*, they are beyond the 
controul of the nation, as they are not to 
be affected by any laws which the peo- 
ple by their reprefentatives can pais. If 
all this be true ; if this doctrine be efta- 
blifhed in the extent which is now con- 
tern^ "d for, the Conftitution is not worth 
the time we are fpending upon it. It is, as 
it has been called by its enemies, mere 
parchment. For thefe judges, thus ren- 
dered omnipotent, may overleap the 
conftitution and trample on your laws; 



C si ] 



they may laugh the legiflature to fcorn, 
and fet the nation at defiance. 

To me it is a matter of indifference 
by what name you call them — I care not 
whether it be kings or judges. Arm 
them with power and the danger is the 
fame. For myfelf I have no hefitation 
in declaring that I would rather be ftip- 
jedt to the abfolute fway of one tyrant, 
than to that of thirty ; as I would pre- 
fer the mild defpotifm of China, to the 
hated arinccracy of Venice, where the 
vileft wretch was encouraged as a fecret 
informer, and the lion's mouth was 
ever gaping for accufation. 

I muff, now be permitted to turn my 
attention to various authorities which 
gentlemen have introduced, and which 
1 prefume they thought would fully efta- 
bliih the pofition they have taken. — 

I deem it peculiarly fortunate for 
us, Sir, that although volumes have been 
ranfack'd, though heaps of newspapers 
and pamphlets have been reforted to, $c 
the journal of the convention itfelf has 
been produced as authority, yet the 
whole furnifk not a fingle argument, 
'not one folitary idea to prove the un- 
conftitutionality of the meafure now un- 
der confideration. They have been read, 
it is true, with much apparent triumph, 
and have afforded gentlemen an ample 
opportunity to difplay their eloquence 
and ingenuity, but certainly have no 
bearing on the queftion, 

Thefirft of thefe authorities is of a 
very high nature, not onlybecaufe it is 
the decilion of a court of judicature, 
but becaufe that decilion was made by 
men whofe talents are acknowledged, 
and whofe characters command univer- 
fal refpecT. Let the cafe, however, 
be fairly ftated, and it will be found 
to bear no analogy to the fubject 
now before us. I lhall refer to the fame 
pamphlet which has been quoted on the 
'ether iide of the houfe, and therefore 
there can be no difference between us as 
to facts. We find in page 24, that by 
the conilitution ©£ Virginia the two 
houfes of aiTcmbly were to appoint by 
joint ballot, judges of the fupreme court 
•f appeals and general court ; judges in 



chancery, and judges of admiralty, who 
were to be commiiiiened by the govern- 
or, and to continue in office during good 
behavior. In the 25th page it is laid, 
that by the firft judicial 'fyftem of Vir- 
ginia one general court was conftituted 
with common law j.urifdic~tion ; one court 
of chancery, and one court of admiralty ; 
and by the law the judges of thefe three 
courts were declared to conftitute the 
court ef appeals-, but as Inch, had no 
commiihoRS given to them. In 1787 
the legiflature paffed a law erecting a 
fyftem of circuit courts, and declared 
that the above named judges fhould exe- 
cute the duties of circuit judges, in ad- 
dition to their duties as judges of the 
other courts. This law the judges re- 
fufe«[ to execute as unconfiitutional, be- 
caufe they laid the legislature had no 
right to impose new duties upon them 
without giving them additional salary. 

This is a plain and fimple fUtementof 
the cafe, with the dtcifion of the court, 
and I am aftonifhed that any man fhould 
attempt to apply it to that now under 
confideration. We do not propofe to add 
new duties to thofe now performed by the 
circuit judges ; but we propofe to take 
from them all duties whatfoever, fo that 
the two cafes are not at all analogous. If 
indeed the opinion be a found one (and I 
certainly mall not undertake to quef- 
tion it) it clearly proves that the law of 
laft feffion was ur.confhtutional, becaufe 
that law impofed new and more ardu- 
ous duties on the judges of the diftricl 
courts of Tennefiee, Kentucky and Ma- 
ryland. It might likewife prove the bank- 
rupt law to be unconstitutional, becaufe 
it impofed a gr^at variety of additional 
duties on the cuftrict judges throughout 
the United States. The bill now un- 
der confideration does not add new du- 
ties to thofe of the judges of the fupreme 
court and the judges ©f thediftrict courts, 
but replaces both in the fituation in 
which they were prior tothepafTage of the 
law which we are now about to repeal. 
I muft fay therefore that this authority 
fails altogether. 

Another deciuon of the fame judges 
has likewife been adduced to prove the 



[ I 

unconrtitutionalky of the prefent bill, 
which is equally inapplicable with the 
other; but perhaps it may be found in 
the end, to apply more forcibly to the ju- 
diciary fyftem of lad feffion. The fame 
author from whom our opponents have 
derived their information, tells us (in 
page 30) that aft^r the judges had re- 
filled to do the duties of circuit judges as 
juft mentioned, " the legiftature appa- 
rently acquiefdng in their decifion," new 
modelled the law, and eftablilhed a fepa- 
rate court of appeals, the judges of which 
were to be elected by the joint ballot of 
the two branches, agreeably to the con- 
ftitution. The former judges, who had 
before jointly performed the duty of 
judges of the court of appeals under a 
law of the Hate, were relieved from the 
further difcharge of it, and (ix of them 
were elected judges of the new court of 
appeals now created feparately : others 
being appointed in their places as judges 
of the court of chancery, general court 
and court of admiralty. This law they 
likewife declared to be unconftitutional, 
not becaufe a c urt which had been cre- 
ated bylaw was abolifhed (for the court 
of appeals was exprefsly eftablifhed by 
the conftitution) but becaufe in their 
own language it was u an amotion from 
office of the whole bench of judges of 
appeals, and the appointment of new 
judges to the fame court." Now, fir, I 
aver, that this very proceeding which 
the judges of Virginia declared to be un- 
conftitutional, was the effect of the ju- 
diciary bill which it is now propofed to 
repeal. For by the former fyftem the 
judges of the fupreme and diftrict courts 
of the United States were made judges 
of the circuit courts, and continued to 
hold them until they were "amoved from 
the office" of judges of the circuit courts 
by the law of iaftfeffion. So that this 
decifion cannot apply to the bill now on 
the table, but is directed with great force 
to that paffed by our adverfaries early 
laftyear, and which it is our intention to 
repeal. 

I have been thus concife in the exa- 

. initiation of thefe two opinions, becaufe 

it was only neceuVy to fhew the points 



2 ] 

in difpute, to convince the mod preju- 
dice^ n ind that they could have no bear- 
ing on the prefent queftien. They may 
indeed ferve to ftVw that the judges tho't 
tiicmfelves authorifed to declare an act 
of the legiflature unconftitutional ; but 
this is by no means the queftion before 
us, although it has been dragged into the 
di feu ill on. 

While I am on this part of the fub- 
jeet, I will endeavor to prove that the 
laft Gongrefs let us an example of abo- 
lifhing courts and vacating the places of 
judgvs, although gentlemen who were 
then in the majority, now contend that 
afimilar proceeding on our part will be 
unconftitutional. The 24th lection of 
the judiciary act of laft feflion declares 
" that the diftrict courts of the United 
States in and for the diftricts of Tennef- 
fee and Kentucky, (hall be ai d hereby 
are abolifhed ;" and by the fame fection 
it was provided tliat the jurifdiction of 
thofe courts fhould be afterwards vefted 
m and exercifed by the circuit courts of 
Tenneffee and Kentucky reflectively. — 
The queftion nectffaiily arifing is, what 
was the effict of abolifhing thefe courts? 
I have no hefitation in faying that in my 
opinion the offices of the judges were like- 
wife abolilhed. It is true that by the 
'7th fection it is declared that the circuit 
court of the fixth circuit fhall be corri- 
pofedofa circuit judge, and of the judges 
of the diftrict courts of Tenneffee and 
Kentucky, thereby retaining them in of- 
fice, and as gentlemen fay not affecting 
their independence. This point I fliall 
remark on prefently, but will now confine 
my obfervations to that part of the law 
which abolifhes the diftrict courts. 

The words judge and court are corre- 
lative terms, and by the conftitution are 
inieparably connected with each other ; 
for in no part of the conftitution do we 
find any other judges fpoken of than 
judges of the supreme and inferior courts, 
A court may be compofed of one or more 
judges ; as the diftrict court is compofed 
of one, an>l *he fupreme court of fix 
judges. It is the legal name of one man, 
or of a body of men in their collective 
capacity, vefted with certain powers, au- 



[ 



S3 



] 



jthority and juriftiaion to be exercir e d by 
'them agreeably to the eftablifhed laws of 
the country, as the word Congress was 
under the confederacy, the political name 
of a body of men in their collective ca- 
pacity, veiled -with legiflative powers to 
a certain extent. When you abelifh the 
court, you take from the perfons com- 
poring the court all the powers vefted in 
them as a court ; as when the old Con- 
grefswas abolifhed, they were divefted of 
all powers vefted in them as a Congrefs. 
When the diftrict court of Kentucky was 
abolifhed, the gentleman who was then 
judge, was no longer judge of the dif- 
tiict court, for there was no fuch court 
in exigence. I would aflc then of what 
he was the judge ? for the idea of a judge 
■without a court is an abfurdity. 

I truft I (hall not be told that he was 
judge of the district of Kentucky, for 
the conftitution knows of no judge, 
but the judge either of the fupreme or of 
an inferior court ; and a judge of a dif- 
trict, without a court is no where recog- 
jiifed by the conftitution. I think there- 
fore, I am warranted in faying that 
when the diftrict courts of Tenneffee 
and Kentucky were' abolifhed, the offi- 
ces of judges of thefe courts werelikewife 
abolifhed. This is precifely the effect now 
contemplated. The bill upon the table if 
enacted into a law will abslifh the cir- 
cuit courts which were created laft year, 
' and will at the fame time abolifh the of- 
fices of the judges of thefe courts. 

But we are told that by abolifhing the 
diftrict courts of Tenneffee and Ken- 
tucky, the independence of the judges 
of thefe courts was not affected, becaufe 
they were by the fame law appointed to 
hold the circmt court of the lixth cir- 
cuit. This is the part of the law which 
the gentleman from Virginia, (Mr. 
Thompfon) laid had violated the confti- 
tution. By the twenty -feventh fection 
of the act paffed laft feffion, the circuit 
courts then in exiftence were entirely a- 
feolilhed, and by the 7th fection new cir- 
cuit courts were created. The confti- 
tution has given to thePrefideRt and Se- 
nate the power of appointing all judges 
both of the fupreme and inferior courts ; 



the circuit c( urt of the ftxth circuit is an 
inferior court, and by the conftitution 
the judges ought to have been appointed 
by the Prefident and Senate. Yet in 
the fact and in violation of the conftitu- 
tion, the legiflature of the laft feffion 
did appoint the judges of the diftrict 
courts of Tenneffee and Kentucky to 
hold the courts of the fixth circuit, which 
courts were created anew by that law, 
and ought to have had their judges ap- 
pointed by the Prefident and Senate. — 
This, fir, was the meafure which the 
gentleman from Virginia faid had inflict- 
ed a ghaftly wound on the conftitution, 
and not that part of the law, as has been 
contended, by which the two diftrict 
courts were abolifhed. 

The gentleman from Connecticut (Mr. 
Grifwold) in order to fhew that we are 
not authonfed to abolifh thefe courts, 
and thereby to vacate the commiflions cf 
the judges, has referred us to the draught 
of a conftitution made for the ftate cf 
Virginia in the year 1783, by the prefent 
Prelidcnt of the United States. It mutt 
be remembered, fir, that this is nothing 
more than the opinion of an individual 
on a fubject not growing out of the con- 
ftitution of the United States, which 
was not then formed, and I believe not 
even dreamt of; but as I feel a high re- 
fpect for the opinions of this gentleman 
on all fubjects, I fhall beg leave to ex- 
amine that alluded to by the member 
from Connecticut. And to me it is a 
matter of fome gratification that the 
man who has been fo long and fo unjuft- 
ly the object of federal calumny, fhould 
at laft receive even this flight retribu- 
tion from federal authority. In this re- 
ference however, the honorable member 
has been peculiarly unfortunate, for it 
will be found, that this draught of a con- 
ftitution, fhews the opinion of Mr. Jef- 
ferfon to have been at that day, precife- 
ly the opinion which we now entertain on 
the fubject before us. Happily for the 
nation, it is not the only inftance in 
which the fentiments ot the chief m<igi- 
ftrate are in direct oppcQtion to thofe of 
the gentleman from Connecticut and his 



C 34 ] 



friends. If the gentleman had turned to 
the book itfelf, which I now have in my 
Land, in (lead of relying on the fcraps of 
anonymous fcribblers, who for aught I 
know are interefted in giving a falfe co- 
louring, he would not have been impof- 
td on. In the 3d article of the plan of a 
conftitution propofed by Mr. Jefferfon, 
it is declared that " the judiciary powers 
Avail be exercifed by county courts St fuch 
oth r inferior courts as the legiflature fh all 
think proper to continue or ereefl ; by 
three fuperior courts, to wit : a court of 
admiralty, a general court of common 
law, and a high court of chancery ; and 
by one fupreme court of appeals." This 
language is very fimilar to that of our 
conltitution which fays that " the judi- 
ciary power (hall be veiled in one fu- 
preme court, and fuch inferior courts as 
Congrefs may from time to time ordain 
St eftaolifh." Now, lir, the precife point 
cf difference between us is whether it 
■was at that time the idea of the prefident, 
that the judges of thefe inferior courts, 
who I will (hew you were likewife to hold 
their csm minions during goodbehav iour, 
could be removed from offi.ee, by abo- 
liihing their refpecYive courts. The plan 
alr-ady alluded to, proceeds to declare 
that the judges of the court of chancery, 
of the general court, and court of admi- 
ralty fh ill hold their commiilions during 
good behaviour, and afterwards in the 
371ft page, provides that M the juftices 
or judges of he inferior courts, already 
erected or hereafter to be erected, ihall 
be appointed by the governor, on advice 
of the council of (late, and fhall hold 
their offices during good behaviour, or 
the existence of their court." This then 
clearly (hews it to have been the idea of 
the writer, that the inferior courts, 
which the legifl iture were authorized to 
ere ft, as they might think proper, might 
• ftew aids be red ced by the legiflature, 
-.ad the judges difplaced, although they 
vere to hold their commiffions during 
good behaviour. As I before faid this 
i^ nothing more than an opinion on a 
fn'ject fomewhat fimilar to that before 
us, and is not directly in point ; but as 
the member from Connecticut thought 



proper to call it into his aid, I think 
when it is found to be againft nim, it 
may very fairly be thrown into the oppo- 
fite fcale. 

The gentleman has likewife referred] 
to the journals of the convention by 
whom the conftitution was framed, and 
has faid a proportion was there made, 
that the judges fhould be removed upon 
the addrefs of the legiflature, as in Eng- 
land. As this was not inferted in the 
conftitution he infers that we have not 
the power. Is it neceffary, fir, again to 
repeat, that this is a power which we do 
not contend for ? But does it therefore 
follow that we have not the power to re- 
peal a law ? There has been no propofi- 
tion that we fhould exercife fuch a pow- 
er. We have no complaints againft the 
judges. They may all be, as I know 
fome of them are, men of honor and inte- 
grity. We have no defire to remove 
them and put others in their places, but 
we with to abolifh a fyftem which in our 
confeiences we believe to be ufelefs and 
unneceffary, and which is fupported at a 
heavy expencc that the nation is neither 
able nor willing to pay. 

But, fir, I believe it has not heretofore 
been fuppofed, that a refufal by the con- 
vention to grant a power exprefsly, pre- 
vented congrefs from an exercife of that 
power. When it was formerly propofed 
to grant a charter of incerporaticn to 
the bank of the United States, it was 
Hated by a member of this houfe, who 
had likewife been a member of the con- 
vention, (Mr. Madifon) that an attempt 
hid been made in the convention to in- 
vert congrefs with this power, and that 
the proportion was rejected ; yet this 
argument had no effed whatever, for 
congrefs did proceed to incorporate the 
bank, and the incorporation flands at 
thisday. If therefore the prefent quo- 
tation from the journal was in point, 
<«ve might be excufed for fuffering it to 
hive no weight with us, as we fhould 
at leaft be juftified by the precedent of 
federal authority. But it bears ne ana- 
logy to the prefent queftion, and ought 
to have no influence in its decifion. 
The extracts which have been read 



C 35 ] 



from judge Tucker's lecture, from the 
debates of the Virginia convention, and 
from the writings of " Publius" are 
equally irrelevant. They contain fome 
general ideas on the independence of the 
judiciary, without any definition of that 
independence, which can poflibly affect 
the bill on the table. The independence 
of the three branches of government 
has, in my opinion, been much talked 
of without being fairly defined, or cor- 
rectly underflood. The powers of our 
government are diftributed under three 
different heads, and are committed to 
three different departments. The legif- 
lative power extends to the enactmg, re- 
viling, amending or repealing all 
laws, as the various intereits of 
the nation may require. The 
judiciary power confifts in an authority 
to apply thofe laws to the various con- 
troverfies which may arife between man 
and man, or between the government 8c 
its citizews, and to pronounce fenten.ce 
agreeably to the dictates of their judg- 
ment andconfciences. After the judi- 
cial decree, it then becomes the buiinefa 
of the executive, to carry it into effect, 
according to its true intent and confor- 
mably to the laws of the land. In all go- 
vernments,where they have the lemblance 
of freedom, the great desideratum has 
been, to keep thefe three branches fo en- 
tirely separate and distinct, as that the 
powers of neither fhould be exercifedby 
the other. Or, in other words, that the 
legiflative powers fhould never be exer- 
cifed by the executive or judiciary, that 
the judicial powers fhould not be exer- 
cifcd by the legiflative or executive, and 
that the executive powers mould not be 
exercifed by the legiflature or judiciary. 
But there is no government on the face 
of the earth, whofe hiftory I am ac- 
quainted with, in which a total and en- 
tire independence has been eftablifhed. In 
England the judiciary hold their offices 
at the will of parliament. In the dates 
of Vermont, Maffac.hu fetts, Gonneai- 
cut, Rhode Ifland, New-Jerfey, Penn- 
fylvania, Delaware, Maryland and Geor- 
gia, the judges are either elected by the 
legiflature for a limited time, or are 



fubject to removal by them ; in 
New- York, fome of the judges are 
in the fame fituation ; in New-Hamp- 
fhire, the legiflature are authorifed to li- 
mit the duration of their commiflions, 
and I believe, are in the habit of doing 
fo ; and in Maryland, Virginia, North- 
Carolina, South-Carolina, and Georgia, 
the executive is abfclutely dependent on 
the legiflature for his continuance in of- 
fice, being annually or biennially elected. 
In Tenneffee, and in molt, perhaps all 
of the others, both the judiciary and the 
executive are dependent on the legifla- 
ture for the amount and payment of 
their falaries. Yet, fir, in all thefe 
ftates, where we find no fuch idea of in- 
dependence as is bow contended for, 
there has been no confuiion, n© diforder. 
The people are happy and contented, and 
I venture to affirm, are more free than 
the inhabitants of any other part of the 
globe. They are happy, becaufe none 
can opprels them ; they are free, becaufe 
they have a controul over their public 
agents. But if the public agents of the 
federal government are to be fet above 
the nation, and are to be invefled with 
the arbitrary and uncontrolled powers 
which fome gentlemen inufl: on, who can 
fay where they will flop, or what bounds 
(hall be prefcribed to th.m ? Man is fond 
of power, is continually grafping after 
it, and is never fatiated. He is not 
therefore to be trufted. Unlimited con- 
fidence is the bane of a free govern- 
ment. Thofe who would retain their 
freedom, mull likewife retain power o- 
ver their agents, or they will be driven 
to deftruction. I have been taught to 
believe, that power is never fo fate, as 
in the hands of thofe for whofe be- 
lief! c it is to be employed. I confider it 
in their hands, when it is delegated to 
reprefentatives freely chofen by them- 
felves for a fhort period, and immediate- 
ly refponnble to them for its ufe. * Pow- 
er in the people, has been well compar- 
ed to light in the fun ; nativi.-, original, 
inherent, and not to be controuled by 
human means.' But, power, when once 
furrendercd to independent rulers, :.*:- 
flantly becomes a defpot, and arm* it- 



[ 36 j 



felf with whips and chains— ."while the 
people retain it in their own hands, it 
exalts the chara&er of a nation, and is 
at once their pride and their feeurity ; 
if they furrender it tn others, it becomes 
reftlefs and a&ive, till it debafes the hu- 
man character, and enflaves the human 
mind; it is never fatisfied till it finally 
tramples upon all human rights—It is a- 
gainft this farrender of power that I 
contend ; it is this vital principle of the 
conftitution, that I never will yield. 
The people are the fountain of all pow- 
er— they are the fource from which eve- 
ry branch of this government fprings — 
and never fhall any a& of mine place one 
branch beyond their controul. 

But, Mr. Chairman, I will conclude. 
I have already faid more than I could 
have wifhed, but the fubjecl demanded 
it. The queftionhasbecovue important, 
and the conftiuubn loudly calls f©r its 
decifion. I entreat gentlemen, however, 
to examine calmly this new doclrime of 
the independence of judges, before they 
eftablilh the principle that the tenure of 
office is to preventrthe repeal of a law, 
by which the office is created. It will 
equally apply to every office under the 



government, for all are held equally in- 
dependent of the legiflative will. It is 
no more in our power to remove an ex- 
ecutive than a judicial officer, and if we 
are to be prevented from repealing a law, 
becaufe we have no right to remove an 
officer, not only the prefent expcnfive 
judiciary mufl continue, but the army, 
and the navy may be increafed hereafter, 
and no future congrefs will be authoriz- 
ed to reduce them ; and the odious ex- 
cife duties are entailed upon us forevfr. 
This is an extent, I prefume to which 
no gentleman is willing to go. It may 
indeed fecure the judges in their offices, 
and afford them the much wifhed for in- 
dependence, but it will facrificethe in- 
dependence of the nation, and render the 
conftitution of no avail. It may leave 
us the name and the fhadow of liberty, 
but the effence and the fpirit of repre- 
fentative government will be totally de- 
ftroyed. 

] therefore cheriih the hope, that this 
conftitutional queftion will be decided by 
paffing the bill upon the table, and that 
a majority of this houfe will vote a- 
gainft ftriking out the firft fe&ion. 



HE 



LIBRARY OF CONGRESS 




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